Jones v. Church, 28480

CourtCourt of Appeal of Missouri (US)
Citation252 S.W.2d 647
Docket NumberNo. 28480,28480
PartiesJONES v. CHURCH et al.
Decision Date18 November 1952

Thurman & Blackwell, Hillsboro, for appellants.

Ennis & Saunders, Festus, for respondent.

ARONSON, Special Judge.

This is an action upon a promissory note, wherein plaintiff (respondent) obtained a judgment against the three defendants (appellants) in the sum of $898.50. The only two assignments of error presented for our consideration on defendants' appeal relate to the alleged insufficiency of the petition and to alleged error in overruling defendants' motion for a directed verdict, based on their claim of insufficiency of evidence adduced by plaintiff.

As befits a suit upon a promissory note, plaintiff's petition was brief, alleging that on September 9, 1940, the defendants executed their promissory note, payable to one Mrs. Anna Malloy or order, one year after date, in the sum of $539.50, for value received that before maturity said payee indorsed and delivered said note to plaintiff for value, whereby plaintiff became owner thereof and was entitled to payment; that plaintiff still owns said note; that same is long past due and that no part thereof had been paid. A copy of the note was filed therewith. The prayer sought judgment for $539.50, plus interest.

It is defendants' contention now that this petition is deficient for failure to contain allegations showing that venue was properly laid in the Circuit Court of Jefferson County, under provisions of Section 508.010 RSMo 1949, V.A.M.S., governing venue of personal actions.

However, defendants did not make any complaint of improper venue in the court below. At no time did they file a motion raising this objection, as authorized by Section 509.290 RSMo 1949, V.A.M.S. Instead their first pleading was a motion to dismiss the petition for failure 'to state a claim upon which relief can be granted', under Section 509.300 RSMo 1949, V.A.M.S., which motion was overruled.

Objection to venue, unlike jurisdiction of the court, can be waived by a party who might be entitled to assert it. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308, loc. cit. 318. Defendants can submit themselves to the jurisdiction of a court (which has general jurisdiction of the subject matter) by any act that would constitute a general appearance. Lieffring v. Birt, Mo.App., 154 S.W.2d 597. The last-cited case also specifically holds that the filing of a demurrer (to which the present-day motion to dismiss is equivalent) is a general entry of appearance. See also Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, 94.

Section 509.050 RSMo 1949, V.A.M.S., prescribes the contents of a petition under our present civil procedure and does not require a statement of facts relative to venue, but only a 'short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment * * *.' If the venue is improper, the defendant must bring such fact to light, before trial, and, indeed, before entering a general appearance; otherwise he has waived any possible objection. Section 509.340 RSMo 1949, V.A.M.S.

Accordingly, we hold that if defendants had any valid objection available to them relative to the selection by plaintiff of Jefferson County as the venue of this action (which we do not concede), yet such objection was not properly presented in the trial court, and defendants have waived the point.

Coming now to the alleged insufficiency of the evidence, plaintiff testified herein that he is the present holder of ther note sued on; that he had purchased the note from the payee, Mrs. Malloy, for the face amount thereof; that she had indorsed and delivered same to him; that nothing had been paid on it and that he had made demand for payment. The only fact developed on cross-examination was that plaintiff's name does not appear on the note, as assignee or otherwise. Neither on direct nor on cross-examination was he asked when the note was indorsed and delivered to him.

Plaintiff offered the note in evidence and also read from depositions of each of the three defendants their respective admissions that each of them had signed the note in suit. Defendants presented no evidence.

It must be noted that the answer of the defendants was a general denial. Under Section 509.240 RSMo 1949, V.A.M.S., the execution of a written instrument is deemed confessed unless specifically denied. By Section 509.410 RSMo 1949, V.A.M.S., the defense of no demand was barred unless expressly set up in the answer. Generally, under Section 509.090 RSMo 1949, V.A.M.S., affirmative defenses, such as failure of consideration, fraud, illegality and payment, must be pleaded specifically, and are not available under a general denial.

The contention now made by defendants on their appeal is that plaintiff, after alleging in his...

To continue reading

Request your trial
9 cases
  • State ex rel. Allen v. Barker, 60631
    • United States
    • United States State Supreme Court of Missouri
    • 13 Marzo 1979
    ...so omitted except for certain substantive defenses in 55.27(g)(2). Venue, of course, unlike jurisdiction can be waived. Jones v. Church, 252 S.W.2d 647, 648 (Mo.App.1952). Respondent argues, however, that when a defense appears on the face of a petition that the defense may be interposed by......
  • Rakestraw v. Norris, 9170
    • United States
    • Court of Appeal of Missouri (US)
    • 10 Marzo 1972
    ...but after a series of general appearances had been entered by the defendant. Plaintiff cites § 509.340 (now Rule 55.37), Jones v. Church, Mo.App., 252 S.W.2d 647, Lieffring v. Birt, Mo.App., 154 S.W.2d 597, and argues that defendant waived any right to object to the venue of the action or t......
  • Hutchinson v. Steinke, s. 30642
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Enero 1962
    ...personal privilege which may be waived by the person entitled to assert it. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Jones v. Church, Mo.App., 252 S.W.2d 647. Such waiver may take the form of an act that would constitute a general appearance, as by pleading to the merits, Robinson v.......
  • State ex rel. White v. Marsh, 62754
    • United States
    • United States State Supreme Court of Missouri
    • 23 Febrero 1983
    ..."jurisdiction."4 Professor Divilbiss notes such cases as Mahan v. Baile, 358 Mo. 625, 630, 216 S.W.2d 92, 94 (Mo.1948); Jones v. Church, 252 S.W.2d 647 (St.L.Ct.App.1952); State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (Mo. banc 1956); and Beckmann v. Beckmann, 211 S.W.2d 536 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT