Harkness v. Julian

• Decision Date: 31 July 1873
• Parties: J. HARKNESS, Admr. etc., Respondent, v. S. H. JULIAN, et al. Appellants,
• Court: Missouri Supreme Court

53 Mo. 238

J. HARKNESS, Admr. etc., Respondent,

v.S. H. JULIAN, et al. Appellants,

Supreme Court of Missouri.

July Term, 1873.

Appeal from Green Circuit Court.

Price & Julian, for Appellants.

John P. Ellis, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought on a promissory note. The plaintiff in his original petition, stated that he was the administrator of the estate of one J. H. Elam, deceased, and described himself in the caption of the petition as such, and charged, that the defendants together with one W. F. McFall by their promissory note dated, etc., for value, had promised to pay said Elam the sum of ninety dollars four months after date, with ten per cent. interest; that fifteen dollars had been paid on said note; that the balance of the note was unpaid; that since the date of the note Elam had died, and that plaintiff had been appointed his administrator, and that the balance due on said note was due him as such; and judgment was prayed.

The defendants Julian and Leathers were served with process. Defendant McFall was not found. The case was returnable to the January term of the Green Circuit Court for the year 1867.

At the return term of the writ, defendant Julian appeared and filed his demurrer to the plaintiff's petition.

The causes of demurrer assigned were: First--That the plaintiff had no legal capacity to sue as administrator of J. H. Elam as the said Elam was yet alive. Second--That petition does not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court and the plaintiff, by leave of the court, filed an amended petition. In his amended petition, plaintiff describes himself in the caption as the administrator of the estate of John N. Dysart, deceased; and states that defendants by their promissory note, filed, dated, etc., as in the original petition, promised for value to pay J. H. Elam or order, the sum of ninety dollars four months after date with interest, etc.; that the defendants had paid fifteen dollars on said note on the 28th of July, 1862; that the balance of said note is still due; that said Elam, before the maturity of the note, sold and transferred the same to John N. Dysart; that since the transfer and delivery of the note to Dysart, he had died, and that plaintiff had been appointed his administrator, and as such is entitled to the note, and prays judgment for the balance due, etc.

At the January term of said court for the year 1868, the plaintiff dismissed his suit as to the defendant McFall, and on the same day judgment was rendered in the cause against defendants Julian and Leathers. At an adjourned term of the court held in June, 1868, defendant Julian filed a motion to set aside the judgment rendered, and quash the execution in the cause, stating in the motion that he only appeared for the purposes of the motion. This motion was sustained by the court.

At the May term of said court for the year 1871, the court rendered another judgment against said defendants in said cause, in which it is stated that the plaintiff and defendants both appeared and submitted the cause to the court.

This judgment is rendered in favor of plaintiff personally, and not as administrator of Dysart. At the same term of the court, another judgment is rendered against said defendants and in favor of the plaintiff in his representative capacity as administrator of the estate of Dysart. This judgment recites that both plaintiff and defendants appeared by their attorneys, and submitted the cause to the court, etc.

At the November term of said court for the year 1871, the defendants appear and file their motion to quash the execution issued in said cause and to arrest the judgment rendered therein; because the judgment was rendered without authority of law; because the court had no jurisdiction of the defendants at the time of the rendition of the judgment; because neither of the defendants had been summoned in the cause or had ever appeared to the merits of the case, and because the judgment is not authorized by the pleadings. This motion was heard by the court and overruled. The defendants filed a bill of exceptions, in which they excepted to the opinion of the court in overruling their motion to quash the execution and arrest the judgment. In the bill of exceptions it is stated, that upon the hearing of the motion the following record and proceedings in said cause were had, to-wit: “All of which can be found in the first part of the transcript (see index) which is all of the evidence in the cause upon the hearing of said motion, etc.” The defendants excepted to the opinion of the court in overruling their motion and appealed to this court.

The record in this case presents an example of as loose and careless practice as can be found in the records of any case that has come under my observation. The suit is first brought by plaintiff, as administrator of the estate of Elam, the payee of the note sued on. The defendants demurred to this petition on the ground that Elam was still alive and could have no administrator. The plaintiff then, by the permission of the court, files an amended petition by which he describes himself as the administrator of the estate of John N. Dysart, and charges that he is the...