Jeffries v. Flint

• Decision Date: 31 January 1874
• Citation: 55 Mo. 29
• Parties: J. H. JEFFRIES, Respondent, v. C. L. FLINT, Appellant.
• Court: Missouri Supreme Court

55 Mo. 29

J. H. JEFFRIES, Respondent,

v.C. L. FLINT, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Phelps Circuit Court.

Seay & Williams, for Respondent.

C. C. Bland, for Appellant.

SHERWOOD, Judge, delivered the opinion of the court.

Action in the Phelps Circuit Court brought by J. H. Jeffries, as subsequent indorser, against C. L. Flint, as payee and prior indorser of a promissory note, made payable to the order of said Flint by one Griffin, the maker, at the banking house of Ward & Bros., Bankers, in the City of Rochester and State of New York. At the return term of the writ, the defendant filed his answer and the cause was continued to the next term. At that term the defendant withdrew his answer and filed his demurrer to plaintiff's petition, which was adjudged insufficient. Plaintiff thereupon filed his amended petition. On the fourth day after the amended petition was filed, the defendant, without having answered or demurred to the amended petition, made an application for a continuance of the cause, on the alleged ground, that, as the “note sued on” was not filed with the original petition, “it was never definitely and certainly known to him, upon what this action was based, until during the present term of this court;” that he could not tell on what note he was sued, and therefore, could not take the depositions of his witnesses, all of whom resided in the State of New York, in support of his meritorious defense, &c., & c.

This application was very properly overruled, as it proceeded upon the assumption that the statutory provision requiring certain instruments to be filed, was applicable to the case at bar. While it is true, in one sense, that this suit has for its foundation the promissory note mentioned in the petition; yet it is equally true that § 51, p. 1022, 2 Wagn. Stat., referred to by appellant's counsel as being in point, has not the slightest application here; as that section applies exclusively to suits founded upon any instrument of writing, charged to have been executed by the other party; i. e., the party who is sued. Consequently, the non-filing of the note with the original petition, constituted no ground whatever for granting a continuance; the application for which had its origin either in an utter misapprehension of the meaning of the statute, or else in the desire to frame some flimsy pretext, wherewith to stave off a trial. If an inspection of the note referred to in the original petition, were absolutely necessary, in order for the defendant to...