Hannibal & St. Joseph R.R. Co. v. Knudson

• Decision Date: 31 May 1876
• Citation: 62 Mo. 569
• Parties: THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant, v. OLE KNUDSON, Respondent.
• Court: Missouri Supreme Court

62 Mo. 569

THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant,

v.OLE KNUDSON, Respondent.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Linn Circuit Court.

James Carr, with H. B. Leach, for Appellant.

I. The appellant, being a corporation, was entitled to file a copy of the contract certified by the president, and authenticated by the seal of said corporation, and the copy should have been received by the court with like effect as the original. (Wagn. Stat., 592, § 18.)

II. The non-filing of the contract was not a ground of demurrer. (Wagn. Stat., 1014, § 6.)

III. It would be exceedingly inconvenient and impracticable for the appellant to be required to file its duplicate of the contract sued on, as each instalment fell due under it.A. W. Mullins, for Respondent.

I. The original contract should have been filed with the petition, or its absence accounted for. (Wagn. Stat., 1022, § 51.) And the failure to file the original contract was a ground of demurrer. (Dyer vs. Murdock, 38 Mo., 224; Rothwell vs. Morgan, 37 Mo., 107.)

HOUGH, Judge, delivered the opinion of the court.

This was an action founded upon a contract, alleged to have been executed by the defendant, which was not filed with the petition; nor was any reason given for failing to file it.

The defendant demurred to the petition on the ground, that it did not state facts sufficient to constitute a cause of action, and that said contract was not filed with the petition, nor alleged therein to be filed, nor was its absence in any way accounted for. The demurrer was sustained; final judgment thereon was rendered for the defendant, and plaintiff has appealed to this court.

The present practice act provides, that when the petition, or other pleading, is founded upon any instrument of writing charged to have been executed by the other party, such instrument shall, unless therein alleged to be lost or destroyed, be filed with such petition or other pleading. No statement is required in the petition or other pleading, that it has been so filed, and a demurrer will not therefore lie for the want of such statement. The revised statutes of 1835 and 1845, regulating practice at law, required in such cases, that profert should be made and oyer given. No such requirement now exists, and a simple filing has been substituted therefor. In analogy to the old form of pleading, it is customary, under the present statute, to use the words ““herewith filed,” but the statute does not require the use of...