John Colhoun & Co. v. M. Crawford & Co.

• Decision Date: 31 August 1872
• Parties: JOHN COLHOUN & Co., Respondents, v. M. CRAWFORD & Co., Appellants.
• Court: Missouri Supreme Court

50 Mo. 458

JOHN COLHOUN & Co., Respondents,

v.M. CRAWFORD & Co., Appellants.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Buchanan Court of Common Pleas.

Hill & Carter, for appellants.

I. The judgment was rendered in the absence of respondents or their attorneys, for want of answer, when, under the law and established rules of the court, defendants were allowed until the next succeeding term of said court in which to file answer; and in that particular the judgment was against the law.

II. It is agreed between plaintiffs and defendants that the following is one of the rules of the said Circuit Court: “Rule 1--Amendments. 1. Every material amendment after answer to the pleadings amended, and every supplementary petition, answer, or reply, after answer to the original, made or filed by either party, shall be cause for the continuation of the cause until the next term, if desired by the opposite party; and on such continuance, the party amending or filing shall pay the cost of that term.” This was a known and established rule of the court at the time the application for a continuance was overruled. When the petition is amended and a new cause of action is or may be set up, the continuance ought to be granted. (Tunstall v. Hamilton, 8 Mo. 500; Dempsey v. Harrison, 4 Mo. 267.)

Everett & Reed, for respondents.

Under our present practice the party seeking a continuance on the ground of an amendment must show cause why he cannot be ready to proceed with the trial. (Wagn. Stat. 1040, § 10; Whittelsey's Pr. 347.) No “cause” was shown “by affidavit or otherwise,” and none appeared by the record. It was claimed by defendant's counsel as a matter of right, to be granted as a matter of course.

This court decided, in 3 Mo. 124, that motions for a continuance are addressed to the sound discretion of the trial courts. And this court must see that this discretion has been unsoundly exercised before it will reverse a judgment for that cause. (8 Mo. 606.)

This appeal was obviously taken for the mere purpose of delay, and the reasons assigned are the most trifling. Ten per cent. damages should therefore be awarded. (45 Mo. 422-429.)BLISS, Judge, delivered the opinion of the court.

Suit was brought upon two promissory notes, and in the original petition the plaintiffs failed to allege their partnership and that of defendants. Defendants demurred and plaintiffs had leave to amend, which was at once done by inserting the omitted allegations and filing the petitions anew. Defendants then applied for a change of venue from the Common Pleas to the Circuit Court, and obtained leave in said court to answer, but not answering, interposed several motions which were overruled, and the court permitted the plaintiffs to file an amended petition instanter, containing in the body of it the interlined allegations. Defendants then moved for a continuance of the cause because of such amendments, but the court overruled the motion, and no answer being filed, gave judgment by default.

The chief error assigned is the refusal of the court to grant a continuance. Some eight months had elapsed since the plaintiffs were entitled, under the statute, to a judgment...