Missouri Glass Co. v. Copeland Sewing Mach. Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 57
• Parties: MISSOURI GLASS COMPANY, Appellant, v. COPELAND SEWING MACHINE COMPANY.
• Court: Missouri Supreme Court

88 Mo. 57

MISSOURI GLASS COMPANY, Appellant,

v.COPELAND SEWING MACHINE COMPANY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. W F. GEIGER, Judge.

AFFIRMED.

F. S. Heffernan for appellant.

(1) The plaintiff's motion to strike out the defendant's plea in abatement should have been sustained. Cannon v. McManus, 17 Mo. 345. (2) The court erred in instructing the jury to find the issue for defendant. Crookshank v. Kellogg (Blackf.) 8 Ind. 257. (3) The defendant cannot plead to the merits of the action in denying being a member of the firm, and at the same time plead controverting the affidavit for attachment. Drake on Attachment (4 Ed.) sec. 406; Meggs v. Shaffer, Hardin, 65; Lindsley v. Malone, 23 Pa. St. 24; Hartory v. Shuman, 13 Mo. 547; Cannon v. McManus, 17 Ibid. 345; Collins v. Nichols, 7 Indiana, 447. (4) Defendant's denial of the allegation in the plaintiff's petition that he was a member of the Copeland Sewing Machine Company is a plea to the merits, and waived the plea in abatement. Fordya v. Hathorn, 57 Mo. 120; Mississippi Planing Mill v. Presbyterian Church, 54 Mo 520; Ely v. Porter, 58 Mo. 158.

W. D. Hubbard and H. E. Howell for respondent.

(1) Plaintiff's motion to strike out defendant's plea in abatement was properly overruled, because the statement in the beginning of his plea, that he was not a member of the Copeland Sewing Machine Company, is plainly a mere introduction to and part of his denial of the causes of attachment. (2) The motion of plaintiff to strike out was in effect a demurrer. Austin v. Loring, 63 Mo. 19. By going to trial and not standing on his motion, plaintiff waived its right to have the action of the court overruling its motion revised by this court. Ely v. Porter et al., 58 Mo. 158; Fuggle, Adm'r, v. Hobbs, 42 Mo. 538, 541. (3) There was no evidence whatever to sustain this attachment as against this respondent and the trial court properly instructed the jury to find the issues for him. Boland v. Missouri Railroad Company, 36 Mo. 484.

SHERWOOD, J.

It is not necessary to consider the action of the trial court in denying plaintiff's motion to strike out the separate plea in abatement, filed by defendant, J. W. Copeland, since, whether that motion was properly denied or not, cannot affect the result reached by the jury in trying the separate plea in abatement. But granting that it be necessary to rule the point, still the action of the trial court may well be upheld and this upon the ground that the motion, being in the nature of a demurrer to the plea, asks too much and should have been directed against that which was objectionable in the plea and no more. In one view, a view sustained by the analogies of the law in somewhat similar cases, the plaintiffs by going to trial on...