Parker v. Staley

• Citation: 55 S.W.2d 332
• Decision Date: 20 December 1932
• Docket Number: No. 5135.,5135.
• Parties: PARKER v. STALEY.
• Court: Court of Appeal of Missouri (US)

55 S.W.2d 332

PARKER v. STALEY.

No. 5135.

Springfield Court of Appeals. Missouri.

December 20, 1932.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

"Not to be published in State Reports."

Suit by R. B. Parker, administrator of the estate of Amy Parker, deceased, against Fred Staley. Judgment for defendant, and plaintiff appeals.

Affirmed.

See also (Mo. App.) 21 S.W.(2d) 200, 37 S.W.(2d) 497.

Howell H. Heck, of Butler, and Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

V. O. Coltrane, of Springfield, for respondent.

COX, P. J.

This appeal is from the action of the circuit court in sustaining a demurrer to plaintiff's petition.

The petition discloses that deceased, Amy Parker, who was the wife of R. B. Parker, loaned defendant $3,000 in the year 1920. That a suit on this note had been brought and prosecuted to final judgment and recovery denied on the ground that there had been a material alteration of the note after its execution and delivery. By this suit an effort is made to recover the $3,000 loaned to defendant which was the consideration for which the note had been given. The demurrer to the petition which the court sustained was based on three grounds: First, failure to state a cause of action; second, because the petition shows upon its face that plaintiff's cause of action, if any, is barred by the statute of limitations; third, res adjudicata.

The ground upon which the court sustained the demurrer is not stated, but if it was properly sustained upon either of the grounds asserted, it will be our duty to affirm the judgment.

The petition alleges the following facts: That Amy Parker is deceased and the plaintiff, R. B. Parker, is her administrator. That he and his wife, Amy Parker, deceased, and defendant, all lived in the state of Colorado in the year 1920. That in 1922, the Parkers came to Missouri and lived in this state until the death of Amy Parker in 1924 and that plaintiff still resides in this state. That in 1925, defendant moved from Colorado to Texas, and in 1927 moved from Texas to Missouri, where he has since resided. That in March, 1920, defendant borrowed from Amy Parker $3,000 while they were all living in the state of Colorado. That afterward the defendant made a note payable to Robert B. Parker as evidence of said indebtedness, and that when the note was delivered to the said Robert B. Parker the name of the payee therein was changed to Amy Parker. In the month of August, 1924, the said Amy Parker indorsed her name on the back of the note and delivered the same to R. B. Parker without value and in anticipation of death. That on December 31, 1927, R. B. Parker brought suit on the note in the circuit court of Greene county, Mo. The defense of a material alteration in the note was made and judgment went for defendant upon that defense. Plaintiff then for his cause of action in this case sets up the fact of the loan of $3,000 by Amy Parker to defendant and demand and refusal to pay and asks judgment for that sum. There were other allegations in the petition which would have a bearing on the question of the statute of limitations and the question of res adjudicata, but we do not deem it necessary to set these provisions out now.

Does this petition state a cause of action? It alleges a loan of $3,000 to defendant by Amy Parker, the then wife of plaintiff; the execution of the note by defendant to R. B. Parker as evidence of that debt; the alteration of the note by changing the name of the payee from R. B. Parker to Amy Parker; the prosecution of a suit upon that note and a final judgment denying recovery upon the ground of a material alteration in the note; afterward a demand of the $3,000 loaned for which the note had been given and a...