Mechanics' Bank v. Gilpin

• Decision Date: 02 June 1891
• Citation: 105 Mo. 17,16 S.W. 524
• Parties: MECHANICS' BANK v. GILPIN.
• Court: Missouri Supreme Court

16 S.W. 524

105 Mo. 17

MECHANICS' BANK v. GILPIN.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

APPEAL — OBJECTIONS NOT MADE BELOW — DEFECT OF PARTIES — WAIVER.

1. Where a suit on a judgment is brought in the name of the judgment creditor for the use of an assignee, the objection that plaintiff is not the real party in interest, cannot be first made on appeal.

2. Where a defect of parties plaintiff appears on the face of the petition, it will be deemed waived, under Rev. St. Mo. 1889, §§ 2043, 2047, unless a demurrer is filed.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Seddon & Blair, for appellant. C. P. & J. D. Johnson, for respondent.

THOMAS, J.

The following is the petition of the plaintiff in this case: "Plaintiff states, on the 7th day of September term of the Jackson County, Missouri, circuit court, the same being the 18th day of September, A. D. 1865, and the said day being one of the regular court days of said court, the Mechanics' Bank did then and there obtain against the said defendant a judgment in the sum of twenty-one hundred and twenty dollars and twenty-five cents, ($2,120.25;) and that afterwards, to-wit, on 27th day of January, A. D. 1866, the said Mechanics' Bank, in writing and for a valuable consideration, did assign said judgment to one Oliver D. Filley; which said judgment, as well as said assignment, is of record in the office of the clerk of the circuit court of said Jackson county, a duly authenticated copy of the same being hereto attached, marked `Exhibit A.' And that afterwards, to-wit, on or about the 1st day of August, A. D. 1881, at the city of St. Louis, in the state of Missouri, the said Oliver D. Filley died intestate, and that said plaintiffs, John Davis and Oliver B. Filley, were by the probate court of the city of St. Louis, in the state of Missouri, duly appointed administrator on the estate of said Oliver D. Filley. Plaintiff further states that said defendants, William Gilpin and Philip D. Pollard, are now, and since the rendering of said judgment have been, non-residents of the state of Missouri. And, further, that no part of said judgment, either principal or interest, has been paid by said defendants. Wherefore plaintiff prays judgment against said defendants, William Gilpin and Philip D. Pollard, in the sum of twenty-one hundred and twenty dollars and twenty-five cents, ($2,120.25,) and legal interest on the same from the 18th day of September, A. D. 1865, and for such other and further relief as to the court in its judgment may deem proper." Defendant answered substantially as follows: Defendant says that he was sued as alleged by the plaintiff; that the sheriff made return upon the summons in said case; that service was had in said Jackson county upon a white member of said defendant's household, over the age of 15, February 21, 1861; that said return was false and fraudulent, stating how it was false, and that he had not been a resident of and had no usaul place of abode in the state for many years prior thereto; that said judgment was based on a certain draft on which defendant was alleged to be an accommodation indorser; that he never had any notice whatever that said draft had been protested, but had supposed and had reason to believe that the same had been fully paid by the drawer thereof; that for many years the defendant was governor of the territory of Colorado; that he has since the latter part of 1861 remained continuously there, residing in the city of Denver, and has been well known there, and known to plaintiff to be residing there. Plaintiff in the reply set up that the defendant was duly served with process in the original suit, setting out the manner of service, and he also denied generally the allegations of the answer. There was no evidence introduced but the case was submitted to the trial court on the following stipulation: "For the purpose of submitting the above-entitled cause to the court, sitting as a jury, for its finding, and the rendition of judgment therein in accordance with its finding, it is hereby stipulated, by and between the plaintiff and the defendant, that the court shall take the said cause as submitted, and shall consider that the plaintiff has introduced evidence in due form tending to sustain the allegations in the petition and reply, and...