Haygood v. McKoon

• Decision Date: 31 October 1871
• Citation: 49 Mo. 77
• Parties: WILLIAM HAYGOOD, Defendant in Error, v. JOHN A. MCKOON, Plaintiff in Error.
• Court: Missouri Supreme Court

49 Mo. 77

WILLIAM HAYGOOD, Defendant in Error,

v.JOHN A. MCKOON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Adair Circuit Court.

Ellison & Ellison, and Barrow, Harrington & Cover, for plaintiff in error.

Dryden & Dryden, with Alverson, for defendant in error.

The record was not inadmissible by reason of any variance with the allegations of plaintiff's petition. (Wagn. Stat. 1033, § 1; Metz v. Eddy, 21 Mo. 13; Randolph v. Keller, id. 557; State v. Price, id. 434.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff and defendant were sureties upon the bond of one Worthington, as guardian of the person and estates of the heirs of James R. Bates. The guardian having made default, suit was brought upon his bond, service was had upon the plaintiff, and judgment by default was rendered against him for $1,047, which he paid, and brings this suit for contribution. The record contains no instructions or declarations of law, and the judgment must stand if the pleadings are sufficient to sustain it, unless there was error in the admission of evidence. The petition avers that the suit against the plaintiff was brought by the subsequent guardian, and does not describe it as having been brought in the name of the State, to the use of the beneficiaries in the bond. This was an imperfection in describing the judgment obtained against the plaintiff, which could have been remedied by amendment or motion to make the pleading more definite, but should not be held to vitiate the judgment. It is cured by verdict. Upon the trial the admission of the record in evidence was objected to because of this imperfection, but the record did not contradict the allegation; it did not form a new cause of action, nor was it such a variance as could have “misled the adverse party to his prejudice.”

The introduction of the record in evidence was also objected to for various alleged irregularities and informalities which did not go to the merits, and which could not be considered collaterally. It is not necessary to specify them, but only to say that if the record showed a judgment valid until reversed, informalities in obtaining it, if any there were, should not have been considered, and the record was properly admitted. The defendant also objects to the judgment because a copy of a copy of the bond was admitted in evidence. On examination of the bill of exceptions I find no such copy admitted in evidence, nor do I see that it was offered. The...