Hornig v. Jones
| Decision Date | 06 March 1925 |
| Docket Number | No. 3549.,3549. |
| Citation | 269 S.W. 399 |
| Parties | HORNIG et al. v. JONES et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Carter County; E. P. Doris, Judge.
Action by F. N. Hornig and another, stockholders of the Hunter Orchard Company, a corporation, against M. W. Jones and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.
Garry H. Yount, of Poplar Bluff, and O. L. Munger, of Piedmont, for appellants.
Clark & Cunningham, of Eminence, for respondents.
This is the second appeal in this case. The first is reported in 252 S. W. 981.
Since this judgment must be reversed and the cause remanded for reasons presently to be stated, it will not be necessary to detail the facts in this case nor to discuss the legal questions involved except in one particular. We wish, however, to make a little more clear one point ruled on in the former appeal. Appellants contend now, as they did then, that the failure of plaintiffs to prove that they were stockholders in the Hunter Orchard Company, a corporation, one of defendants, was fatal to their recovery because without that showing, plaintiffs did not show that they had the right to maintain this action. We merely wish to say that since the answer was only a general denial, the question of plaintiffs' right or capacity to sue was not an issue at the trial and it was not incumbent upon the plaintiffs to prove it. An issue of that kind, when the want of capacity to sue does not appear on the face of the petition, can only be raised by special plea and is not put in issue by a general denial. Bulkley v. Big Muddy Iron Co. et al.; 77 Mo. 105; Baxter v. St. Louis Transit Co., 198 Mo. 1, 14, 95 S. W. 856; Ashton v. Penfield, 233 Mo. 391, 418, 135 S. W. 938; Woerheide v. Kelley (Mo. Sup.) 243 S. W. 158, 161; Morgan v. C. Hager & Sons Hinge Mfg. Co., 120 Mo. App. 590, 605, 97 S. W. 638.
On the former appeal we reversed the judgment and remanded the cause. When the case went back to the circuit court, the defendants M. W. Jones and Hunter Orchard Company, a corporation, filed an application for change of venue on the ground that the plaintiffs had an undue influence over the mind of the judge and that the judge was so prejudiced against defendants that they could not have a fair and impartial trial before him. This application was regular in every way, properly verified, filed on the first day of the term, after five days' notice to the plaintiffs,...
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