Hite v. Hunton

• Decision Date: 31 January 1855
• Citation: 20 Mo. 285
• Parties: HITE et al., Defendants in Error, v. HUNTON, Plaintiff in Error.
• Court: Missouri Supreme Court

20 Mo. 285

HITE et al., Defendants in Error,

v.HUNTON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1855.

1. A defendant after appearance cannot take advantage of a variance between the petition and the summons in the names of the plaintiffs.

2. The insertion of an “&” between the christian and the surname of a plaintiff in the caption of a petition, may be summarily amended.

Error to Benton Circuit Court.

The case is stated in the opinion of Judge Ryland.

F. P. Wright, for plaintiff in error.

Gardenhire, for defendants in error.

RYLAND, Judge, delivered the opinion of the court.

The plaintiffs filed their petition against the defendant in the Benton Circuit Court. The petition is in the name of Ormsby Hite and Abraham Hite, merchants trading under the name and style of “Ormsby Hite & Co.,” plaintiffs against Felix Hunton, defendant. The plaintiffs state that said defendant, by his promissory note hereto annexed, dated the 18th of October, 1843, promised for value received, to pay the said plaintiffs, by their co-partnership name of Ormsby Hite & Co., one day after date, the sum of two hundred and twenty-one dollars which, and the interest thereon are yet due, and for which the plaintiffs ask judgment.” The summons issued requiring the defendant “to answer the complaint of Ormsby & Hite and Abraham Hite, plaintiffs.” At the return term of the writ, the parties appeared, and time was given to defendant to file his answer at any time within sixty days from the end of the term. Within the time allowed, the defendant filed the following answer.

“Ormsby & Hite and Abraham Hite vs. Felix Hunton. This defendant, Felix Hunton, here says that he never executed or made any note whatever payable to Ormsby & Hite and Araham Hite as stated in the plaintiff's petition, and he does not owe any such note or any part of any such note; that he never made or executed to the plaintiffs. Ormsby and Hite and Abraham Hite partners, by the name of “Ormsby and Hite.” any such note as is described in the plaintiffs' petition.”

At the same time, he also filed his motion to quash the writ, 1 because there is no summons in favor of Hite & Co.; 2, because the summons is in favor of Ormsby and Hite and Abraham Hite, and the note filed in the case shows no indebtedness or contract with such parties; 3, because the note filed herewith shows no indebtedness from defendant to said Ormsby and Hite and Abraham Hite; 4, because the summons and petition do not correspond as to the names of plaintiffs and defendant. At the next term of the court following, the defendant asked leave to file an amended answer, which was granted, and which answer is as follows:

“Ormsby & Hite & Abraham Hite, merchants, trading under the name and style of Ormsby, Hite & Co., plaintiffs, against Felix Hunton, defendant. In the Benton Circuit Court.” The defendant. Felix Hunton, for answer to said petition, states that he never executed or made any such note whatever payable to Ormsby & Hite & Abraham Hite as stated in plaintiff's petition, and he says he does not owe any such note, or any part of any such note; and defendant further says, that he never made or executed to plaintiffs, Ormsby & Hite & Abraham Hite, by their co-partnership name of Ormsby, Hite & Co., any such note as described in plaintiff's petition; and defendant denies that, by his promissory note, dated the eighteenth day of October, eighteen hundred and forty-three, he promised to pay the said Ormsby & Hite & Abraham Hite, by their co-partnership name of Ormsby Hite & Co., the said sum of two hundred and twenty-one dollars, or any part thereof; and he denies that the same, or any part thereof, is still due said plaintiffs, Ormsby & Hite & Abraham Hite, as set forth, stated and described in plaintiffs' petition.”

The plaintiffs moved to strike out the answer, because the answer does not respond to the petition of the plaintiffs: because it is wholly irreleant in this, that the suit is brought by Ormsby Hite and Abraham Hite, and the answer responds to the action as if it were brought by Ormsby & Hite and Abraham Hite, and the said answer contains no defense.

The court sustained the plaintiffs' motion and struck out the defendant's answer, and then ordered that the suit be stated as follows: “Ormsby Hite & Abraham Hite, plaintiffs, against Felix Hunton, defendant”--who appear to be the real partie...