Jones v. Tuller

• Decision Date: 31 July 1866
• Citation: 38 Mo. 363
• Parties: JAMES M. JONES, Defendant in Error, v. G. M. TULLER, Plaintiff in Error.
• Court: Missouri Supreme Court

38 Mo. 363

JAMES M. JONES, Defendant in Error,

v.G. M. TULLER, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1866.

Error to Dade Circuit Court.

This was an action commenced in the Polk Circuit Court, in April, 1861, by Jones against ____ Butterfield, G. M. Tuller, and all other persons composing the Overland Mail Company, for a breach of contract as proprietors of a stage line from Smith City to Bolivar, Mo., to convey defendant in error safely between said points, and for damages for injuries resulting from such failure. The petition stated a contract between plaintiff and defendants. The statement and petition was entitled as follows: “James M. Jones v. ____ Butterfield. G. M. Tuller, and all other persons who compose the Overland Mail Company.” There was an affidavit to this petition for an attachment which alleged that “the defendants are a corporate body whose chief office is out of this State.” The attachment was served by delivering to one Fisher (who was not named in the petition nor in the writ), on the 2d day of May, 1861, a copy of the petition and writ, and by delivery to G. M. Tuller a copy of the writ on the 4th of May, 1861, and by attaching horses, &c. (not stating whose property they were).

At the next term of the Polk Circuit Court, which was held (it being the first term held after the filing of the petition) October, 1862, on the first day of the term, the judge of the court having been of counsel, a change of venue was awarded to Dade county.

At the April term, 1863, of the Dade Circuit Court, an interlocutory judgment was rendered against the defendants.

On the 2d day of the April term, 1864, of that court, the defendants appeared and filed a motion to set aside the said interlocutory judgment, alleging reasons and supported by affidavits. On the next day Butterfield filed an answer in the cause, containing a denial of the allegation of plaintiff's petition. On the day on which this answer was filed, G. M. Tuller, one of the defendants, also filed a motion to set aside the interlocutory judgment. The plaintiff on same day filed a motion to strike out portions of Butterfield's answer, which motion was overruled by the court.

At the April term, 1865, the cause was continued at the plaintiff's cost.

At the October term, 1865, the defendants filed an application for a change of venue on account of the prejudice of the judge. The court overruled defendants' application for a change of venue, which was duly excepted to. The plaintiff then proposed to dismiss this suit as to defendants Butterfield and all others except G. M. Tuller, to which dismissal defendants objected, and, the court permitting such dismissal, duly excepted. Immediately afterward the case was called for the assessment of damages, when the said defendants asked for a hearing and decision on the motion filed by Butterfield and G. M. Tuller at the April term, 1864, to set aside the interlocutory judgment obtained by said Jones against said Butterfield, Tuller and all others comprising said Overland Mail Company, the defendants. This motion being overruled defendants excepted. Immediately thereafter the plaintiff stated he did not demand a jury, and proposed to submit the hearing of the cause to the court. The defendant G. M. Tuller demanded a jury to assess the damages, which the court refused, and proceeded, after hearing the evidence of plaintiff, to assess the damage, and gave judgment for plaintiff, to which ruling defendants duly excepted.

Defendant G. M. Tuller in due time filed a motion for a new trial. This motion was overruled, and defendant excepted, and filed a motion in arrest and to set aside the judgment, alleging that the petition did not state facts sufficient, &c. that it does not charge that defendant was a member of the Overland Mail Company; that the petition did not charge that defendant had charge of the stages, or was in any way interested in said company; that the court erred in permitting plaintiff to dismiss his suit as to defendant Butterfield after Butterfield had filed his answer; that the court erred in refusing to set aside the interlocutory judgment as to defendant G. M. Tuller; that the court erred in refusing a change of venue in this cause on application of Owen Tuller; that the court erred in refusing defendant the right to have the damages assessed by a jury in this cause,...