Highley v. Noell

• Decision Date: 31 October 1872
• Citation: Highley v. Noell, 51 Mo. 145 (Mo. 1872)
• Parties: NATHANIEL HIGHLEY, Respondent, v. MARY A. NOELL, Appellant.
• Court: Missouri Supreme Court

51 Mo. 145

NATHANIEL HIGHLEY, Respondent,

v.MARY A. NOELL, Appellant.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Perry Circuit Court.

J. W. Nicholson, for Appellant.

Robinson & Clardy, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

The objection urged by the counsel for the appellant in his brief to the petition, and the action of the court in refusing to have a jury empaneled on the trial, are not available.The petition contained two counts; the first was in the nature of a declaration at law for money had and received, and asked for judgment for the sum alleged to be due; the second count was equitable in its character, but did not conclude with a prayer for any relief.

On the trial no attention was paid to the count in equity, but the petition was treated as an action at law, and judgment given on the first court only.Undoubtedly the defendant had the right to demand a jury, and the refusal of the court to comply with the request would have been good ground for reversal, had no the point been expressly waived by an agreement filed in the cause.The error of the court in refusing defendant a jury is explicitly waived, and therefore it will not be further noticed.A demurrer was interposed to the petition, and also a motion to strike out a part of the same, both of which were overruled.But as no...