Iroquois Mfg. Co. v. Annan-Burg Milling Co.

• Decision Date: 02 December 1913
• Citation: 161 S.W. 320,179 Mo. App. 87
• Parties: IROQUOIS MFG. CO. v. ANNAN-BURG MILLING CO. et al.
• Court: Missouri Court of Appeals

161 S.W. 320

179 Mo. App. 87

IROQUOIS MFG. CO. v. ANNAN-BURG MILLING CO. et al.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

Rehearing Denied December 16, 1913.

1. PLEADING (§ 35)—CAPTION—SURPLUSAGE.

The words "a corporation," appearing in the caption of a complaint after the name of the plaintiff, may be disregarded as surplusage.

2. PARTNERSHIP (§ 197)—ACTION BY PARTNERSHIP —PARTIES.

Actions by a partnership should be brought in the names of the individual partners, and if brought in the firm name there is a defect of parties.

3. CORPORATIONS (§ 514)—ACTIONS—DENIAL OF CORPORATE EXISTENCE—ANSWERS—AFFIDAVIT.

In an action by a supposed corporation, Rev. St. 1909, § 1985, declaring that the fact of incorporation need not be proved unless put in issue by affidavit filed with the pleadings, does not make the affidavit part of the answer, so as to render unnecessary a denial of corporate existence in the answer.

4. PARTIES (§ 75)—DEFECTS—MODE OF TAKING ADVANTAGE.

Where a defect of parties appears on the face of the petition, it must, under Rev. St. 1909, § 1800, be taken advantage of by demurrer; but, if not so appearing, it must, under section 1804, be taken advantage of by answer, or the defect is waived.

5. CORPORATIONS (§ 518)—ACTION—ISSUES— CORPORATE EXISTENCE.

In an action by a corporate plaintiff, where there was no issue as to its incorporation, evidence tending to show that it was not incorporated is inadmissible.

6. JUDGMENT (§ 948) — CONCLUSIVENESS— NECESSITY OF PLEADING.

The conclusiveness of a prior adjudication must ordinarily be pleaded.

7. APPEAL AND ERROR (§ 1241)—ACTION ON APPEAL BOND — MATTERS CONCLUDED BY JUDGMENT.

Where defendants gave an appeal bond in favor of a corporate plaintiff, they cannot, after affirmance, raise the issue of the corporate existence of plaintiff in an action on the bond, for that matter could have been raised in the original action, and the judgment is conclusive.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the Iroquois Manufacturing Company against the Annan-Burg Milling Company and others. From judgment for plaintiff, defendants appeal. Affirmed.

Geo. F. Beck, of St. Louis, for appellants. Russell I. Tolson, of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action on a bond given by appellants to respondent on an appeal from a judgment of the circuit court to this court, in a cause in which the respondent here was plaintiff and the Annan-Burg Milling Company defendant, the Annan-Burg Milling Company executing it as principal, and Henry Burg and George F. Beck, as sureties, one the attorney, the other a member of the defendant corporation. It is for the sum of $200, and after reciting that the Annan-Burg Milling Company has appealed from the judgment rendered against it and in favor of the Iroquois Manufacturing Company in the circuit court, city of St. Louis, for the sum of $53.80, together with costs, it contains the usual conditions that appellant should prosecute its appeal with diligence to a decision in the appellate court, etc. Averring that the condition has been broken in that the principal had not prosecuted the appeal, but that the appeal had been dismissed and the judgment of the circuit court affirmed, and that execution had issued on the judgment of this court, and had been returned unsatisfied, judgment is asked for the penalty of the bond and damages in $109.83, and interest and costs.

An answer was filed to this on the 21st of April, 1911, which consists of a general denial, not under oath. On the 21st of May, 1911, George F. Beck filed an affidavit that at the time of the commencement of the action, there was not, nor is there now, any such corporation as the Iroquois Manufacturing Company named as plaintiff herein. The case was tried by the court, a jury being waived, and evidence introduced on the part of plaintiff which included the bond, the judgment of the circuit court in the case of Iroquois Manufacturing Company v. Annan-Burg Milling Company, the judgment of affirmance by our court, its mandate of affirmance, as also the execution issued out of the circuit court against the Annan-Burg Milling Company in that cause and the nulla bona return of the sheriff on the execution. Defendants demurred to the evidence. That was overruled. Whereupon defendants introduced in evidence, over the objection of respondent, a deposition which tended to prove that the Iroquois Manufacturing Company was a partnership of three individuals carrying on business under...