Krause v. Spurgeon

• Decision Date: 06 July 1927
• Citation: 297 S.W. 434,221 Mo.App. 26
• Parties: W. C. KRAUSE, ET AL., RESPONDENTS, v. ANDY SPURGEON, APPELLANT. [*]
• Court: Missouri Court of Appeals

297 S.W. 434

221 Mo.App. 26

W. C. KRAUSE, ET AL., RESPONDENTS, v. ANDY SPURGEON, APPELLANT. ^[*]

Court of Appeals of Missouri

July 6, 1927

Appeal from the Circuit Court of Crawford County.--Hon. W. E Barton, Judge.

REVERSED.

Judgment reversed.

O. J Stewart, Johnston & Rinehart, and Harrison & Norvell for appellant.

Cases appealed from justice of the peace courts to the circuit court must be tried de novo and in the circuit court the defendant may plead any defense which he might have to the cause of action, including the Statute of Limitations regardless of the fact that he did not make that plea in the trial in the justice of the peace court. R. S. 1919, sec. 2902; Phillip v. Bliss, 32 Mo. 428. It is a settled rule of procedure in this State that when a cause comes by appeal from a justice's court to the circuit court it is to be tried de novo. It is equally settled, as a general rule, that the defendant may, on a trial anew in the circuit court, avail himself of any defense which he may have, whether he has offered in the justice's court or not. Meyers v. Boyd, 37 Mo.App. 532, 535; Phillip v. Bliss, 32 Mo. 427, 428; Compton v. Parsons, 76 Mo. 455, 456; Hubbard v. Quisenberry, 28 Mo.App. 20. Defendant may offer any defense whether made before the justice or not, except he cannot offset or counterclaim which must be pleaded in the justice court. This is the only exception; so that the defendant for the first time may plead in the circuit court, that the plaintiff was not the real party in interest. Comfort v. Lynan, 67 Mo.App. 670. Any defense can be made on appeal to the circuit court from the justice court. The only amendment prohibited is in changing the cause of action. Van Buren Bank v. Mills, 99 Mo.App. 68; Hixon v. Seders, 46 Mo.App. 275. No formal pleadings upon the part of either plaintiff or defendant shall be required in a justice's court, but before any process shall be issued in any suit, the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded. And the defendant shall, before trial is commenced, file the instrument, account or statement of his set-off or counterclaim relied upon. R. S. 1919, sec. 2735. The case having originated before a justice of the peace, no formal pleadings were required and it was therefore not necessary to plead the Statute of Limitations. The appearance of the defendant in cases originating before justice of the peace operated, however, to raise the general issue and therefore the case stands as though the defendant had answered by general denial. Under a general denial, it is competent to prove any facts going to show that plaintiff never had any cause of action. Barr v. Lake, 147 Mo.App. 252; Smith v. Humphrey, 266 S.W. 487-489; Smith v. Humphrey, 266 S.W. 487-489. In actions before justice of the peace no formal pleadings are required. There, the general issue is presumed to be pleaded and under it the defendant may show any matter which tends to defeat the plaintiff's action. On a trial anew in the circuit court the rule is the same. Sherman v. Rockwood, 26 Mo.App. 403; Hornsby v. Stevens, 65 Mo.App. 189; Reed v. Snodgrass, 55 Mo. 180; Helm v. Mo. P. Ry. Co., 98 Mo.App. 423; Rico v. Peters, 185 S.W. 752.

Harry Clymer, Virginia J. Booth and James Booth for respondent.

(1) The appellant having failed to call the attention of the justice or the circuit court on the first trial, by oral plea or otherwise, to his defense invoking the bar of the statute he thereby waived that defense. Carder v. Primm, 47 Mo.App. 306; Scharf v. Klein, 29 Mo.App. 549; Revelle v. Railroad, 74 Mo. 442. (2) True, the action originated in a justice's court, where written pleas are not required. The rule in Carder v. Primm, supra, is thus expressed: "In every case, even where there are no written pleadings, this defense must be distinctly brought to the attention of the trial court in some way. This we have held on the analogous question of the Statute of Frauds, and it is not brought to the attention of the court by a request for an instruction that the plaintiff cannot recover. (3) A failure to plead the statute waives it. Boyce v. Christy, 47 Mo. 70; Benoist v. Darby, 12 Mo. 196; State ex rel. v. Spencer, 79 Mo. 317. (4) Unless pleaded at the proper time and in the proper manner the Statute of Limitations is waived. 37 C. J. 1213. (5) Ordinarily a party can rely on the Statute of Limitations as a defense only where he pleads it at the first opportunity, that is, at the first stage of the pleading that discloses its applicability, unless the court permits it to be set up at a later stage. 12 C. J. 1218. (6) The rule is that "the statute should be pleaded in the first instance and allowed no grace of right thereafter where it is claimed solely as a legal advantage. Courts are not inclined to favor Statutes of Limitation except where used as instruments of justice and not of strategy." Cook v. Spears, 58 A. D. 348, 2 Cal. 409; Watters v. Webster, 52 Col. 49. (7) Where the statute is not timely set up as a defense it is always within the discretion of the court to allow or refuse a proper plea. 17 R. C. L. 993; Johnson v. Blell, 61 Mo.App. 46; Ensworth v. Batton, 67 Mo. 622.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This is a suit on a promissory note. Plaintiff recovered judgment and defendant appealed.

The defense relied upon was payment and the Statute of Limitations. The trial was had before a jury, but the jury failed to agree. Thereafter it was agreed that the record as made at the trial be submitted to the court sitting as a jury. This was done and the court found for plaintiffs. This is the second time this cause has reached this court. [See Krause et al. v. Spurgeon, 256 S.W. 1072.] We make reference to our former opinion for the facts underlying this cause, and will state in the course of this opinion such additional facts as may be necessary.

The note sued on was for $ 52 and was executed December 13, 1910, and was due one day after date. A credit of $ 22.50 was endorsed on the back of the note under date of January 18, 1912. The cause originated in a justice of the peace court and was commenced January 12, 1922. Defendant filed no written pleadings. In the justice of the peace court defendant's defense was payment. In the first trial in circuit court his defense was payment and the Statute of Limitations, but the defense of limitations in that trial was upon a different theory to that now presented. At the last trial in the circuit court plaintiffs admitted that the payment of $ 22.50 endorsed on the note under date of January 18, 1912, was in fact made January 10, 1912. Under the admission made it was ten years and two days from the time of the payment on the note before the cause was commenced and it was, therefore, barred under the statute. [Sec. 1316, R. S. 1919.] Plaintiff, after making the admission that the statute had run before the suit was commenced, proceeded on the theory that defendant had waived the right to reply upon the Statute of Limitations and this was the theory upon which the court found for plaintiffs. Defendant offered evidence that he had paid all the note except $ 2, but there was evidence to the contrary. The evidence in this record on the question of payment is substantially the same as stated in our former opinion.

The theory of limitations relied upon by defendant at the first trial in the circuit court is stated in Krause et al. v Spurgeon, supra, as follows: "Defendant contends that limitations had run, and that the court should have directed a verdict as requested. This contention is based on the following facts. The note was given in the first instance as a balance due on a wagon. Krause did the woodwork on the wagon, and his interests in the note, when made, was $ 29.50. Scheel Bros., blacksmiths, did the ironwork on the wagon, and their interest in the note when given was $ 22.50. Defendant made the payment on the note to Henry Scheel. Defendant says that he paid Scheel $ 80, while Scheel says the payment was $ 22.50. Henry Scheel says that he kept the $ 22.50 as Scheel Bros.' interest in the note, and that thereafter Scheel Bros. had no interest. If Scheel Bros. had no interest after January 18, 1912, defendant reasons, as we understand him, that limitations as to Krause began to run on the date of the note, and that since suit was not filed until January 12, 1922, plaintiff Krause was barred. There was nothing on the face of the note to indicate that plaintiffs were not equally interested in the note, and nothing on the note in connection with the payment to indicate that the payment satisfied Scheel Bros.' interest in the note. At the time the note was given defendant was not advised that plaintiffs were not equally interested in the note, and there is no evidence that when the payment was made defendant was advised that he was paying Scheel Bros.' interest in full. All these were matters concerning plaintiffs, and which they would have to dispose of among themselves. Plaintiff Krause had possession of the note all the time, and when the payment was made January 18, 1912. Henry Scheel, to whom...