Meyerhardt v. Fredman

• Citation: 131 S.W.2d 916
• Decision Date: 03 July 1939
• Docket Number: 19,438
• Parties: JULIUS MEYERHARDT, Respondent, v. HAROLD FREIMAN, Appellant
• Court: Court of Appeals of Kansas

131 S.W.2d 916

JULIUS MEYERHARDT, Respondent, v. HAROLD FREIMAN, Appellant

No. 19,438

Court of Appeals of Missouri, Kansas City

July 3, 1939

APPEAL FROM JACKSON CIRCUIT COURT.

Affirmed.

M.D Campbell, C. Sperry, C., concurs. All concur.

OPINION

M.D Campbell

Plaintiff brought this action to recover the amount of a promissory note alleged to have been executed by the defendant, payable to the order of Walnut Realty Company in the amount of $ 824.37, with interest from maturity at the rate of six per cent per annum.

The record recites that on February 1, 1938, the cause "coming on regularly for trial, * * * and defendant although having been duly summoned herein comes not but makes default"; that plaintiff waived a jury and the cause was submitted to the court; that the court after hearing the evidence found for the plaintiff, rendered judgment for him and against defendant in the amount of $ 886.20.

Within four days thereafter defendant filed a verified motion to set aside the judgment; alleged that:

"**** said judgment was rendered through mistake; there having been an agreement between plaintiff and defendant to permit the proceedings to be stayed temporarily for the purpose of conferences, the filing of a motion, or the taking of depositions should they become necessary. Defendant states that he was in the court house on said date and understood that said cause would not be heard on that date. The said judgment was entered at a time when defendant was absent and did not hear of said judgment until the following day.

"3. Defendant states that he has meritorious defense to said cause of action in that the plaintiff is not the innocent holder of said note for value; that the parties necessary for the determination of the suit have not been included; that the matter in question is involved in another suit pending in this court between the signers of said note.

"4. Defendant alleges that by reason of the premises he has been deprived of his defense to this action without any fault or neglect on his part, and by reason of circumstances in no wise under his control and for other reasons, and that by reason of the premises and without his fault or negligence he has been deprived of a trial by jury."

The motion was heard and overruled on March 14, 1938. The defendant appealed.

The petition alleged the execution of the note, the assignment to plaintiff by the payee, and that the note was due and unpaid.

The answer, apart from a general denial, alleged that plaintiff was not the owner of the note; that plaintiff was "not a holder in due course for value"; and that defendant "is informed and believes that all of said note has been paid."

The allegation that plaintiff was not a holder in due course for value was a conclusion, not the statement of an issuable fact. Even v. Winston Bros. Co., 48 S.W.2d 125, and cases cited therein.

The charge that defendant was informed and believed the note had been paid was not a plea of payment. Defendant, had he been present at the trial, would not have been permitted to show that he "believed" or had been "informed" the note had been paid. Thus the only fact alleged in the answer which could have defeated the action was that plaintiff did not own the note.

The motion to set aside the judgment does not question plaintiff's title in the note. The allegation that plaintiff was not an "innocent holder" amounted to nothing. Whether plaintiff was or was not an innocent holder as that term is understood in the law, was of no moment unless defendant had a defense to the note while it was in the hands of the...