Hempstead v. Stone

• Decision Date: 30 November 1828
• Citation: 2 Mo. 65
• Parties: HEMPSTEAD ET AL. v. STONE, BELLOWS ET AL.
• Court: Missouri Supreme Court

2 Mo. 65

HEMPSTEAD ET AL.

v.STONE, BELLOWS ET AL.

Supreme Court of Missouri.

November Term, 1828.

ERROR FROM ST. LOUIS CIRCUIT COURT.

MCGIRK, C. J.^a1

This was an action of assumpsit, brought by Stone, Bellows, and Bostwick, against Pilcher, Drips, Carson, Woods, C. S. Hempstead, and Mary Lisa; the last, as executor and executrix of the last will of Manuel Lisa. The defendants all pleaded non-assumpsit. The court, sitting as a jury, found that Hempstead and Lisa did not assume in manner and form, &c., and that the other defendants did assume, &c. The declaration charges a joint contract. The court gave judgment for the plaintiffs against those defendants who did assume, and for those defendants who did not assume.

A writ of error is brought by those defendants who did assume. The error assigned, is, that in this case, the declaration shows and alleges a joint contract, and that some of the defendants having had a verdict for them, there should have been judgment for all. To prove that this judgment is erroneous, 1 Chitty's Plead. 31, is cited, where it is said, that in actions ex-contractu, against several, it must appear on the face of the pleadings, that their contract was joint, and that fact must also be proved on the face of the trial, and if too many persons be made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; but if the objection does not appear on the pleadings, the defendants may move for a non-suit. To escape the consequences of this doctrine, the defendants in error insist, that the verdict and judgment are no part of the pleadings; therefore, the objection cannot be looked into, and the defendants having failed to take advantage by non-suit, cannot now have any advantage.

I answer to this argument, that the objection is equally fatal, whether the error appear by the declaration, plea, verdict or judgment, if it be one which this court can see the court below expressly decided on. It is there argued, that this judgment and record does not show that the point was ever decided on in the court below, and that the party should have moved in arrest of judgment. The act of the General Assembly, Revised Code, p. 634, says, no exception shall be taken in the Supreme Court, on any point, except that which has been expressly decided in the Circuit Court. This court has on several occasions held, that if there be an error in the judgment, in departing from the pleadings or verdict, that, though no objection...