Payne v. Collier
| Decision Date | 31 May 1840 |
| Citation | 6 Mo. 321 |
| Parties | PAYNE v. COLLIER. PAYNE v. COLLIER & PETTUS. |
| Court | Missouri Supreme Court |
MULLANPHY, for Plaintiff in Error. The first error assigned is general. The second error assigned is the Circuit Court's giving judgment, as by default, for want of a plea, whilst a motion to quash writ was pending and undetermined, need not be farther noticed than by saying, that, although the Circuit Court does not consider a motion as equivalent to a plea, for the purpose of staying proceedings until such motion be decided, it is presumable that such doctrine will scarcely be affirmed, or deemed a matter of doubtful disposition. The third error assigned is the overruling motion to quash writ. This depends upon the sufficiency of the writ. That sufficiency will be determined by a comparison of the writ with the requirements of the section 8, article 1, Practice at Law, Statutes of Missouri, page 451, which ordains that “““the original writ, in all cases where it is not otherwise provided by law, shall command the officer to summons the defendant to appear in court on the return day of the writ, and at a place to be specified in such writ, to answer the complaint of the plaintiff.” The words of the law are absolute and imperative. No discretion is left to the officer to change the command of the writ. In this case the writ does not command the plaintiff to appear in court, but to appear before the Judge of the Circuit Court ( non constat but what it might be at chambers). The writ continues, “to answer unto George Collier of his demand,” not to answer the complaint of the plaintiff. Independently of the above objections, the petition is addressed to the St. Louis circuit, and not to any court at all. Could any writ issue upon such a petition?
SPALDING and TIFFANY, for Defendant in Error. The only point in the case, so far as I know, is, whether the court erred in refusing to quash the writ. Rev. Code, p. 449, also, p. 451, section 8; 3 Mo. R. 38; 2 Mo. R. 211; 4 Mo. R. 438.
The above cases are alike in every particular, except in the last case Collier and Pettus were joint plaintiffs, and in the first case Collier alone was the plaintiff. One opinion will dispose of both cases. Collier brought his action under the petition and summons statute. The statute gives a defendant the three first days of the term to appear and file his plea. Before the three days expired, the defendant, Payne, appeared and made a motion to quash the plaintiff's writ, for the following reasons, to-wit: 1st. The writ does not require the defendant to answer any action known to the law. 2nd. Same in substance as the first. 3rd. The same. 4th. The writ is not such as the law contemplates. 5th. The writ is informal, &c. This motion was filed, but no further notice was taken of it till after the two days for pleading had expired. When the time for pleading had expired the plaintiff took judgment by default for want of a plea, without taking any notice of the motion: after the judgment by default was rendered, the defendant's motion to quash came on to be heard and was overruled.
It is assigned for error, that the court gave judgment by default against the defendant while he was, by law in court, and while his motion to quash was pending. As to this matter of error, my opinion is, that the judgment by default, at most, was only an irregularity. That a mere irregularity is not the subject of error, has been often declared by this court; particularly, it has been so decided in the case of Holmes and Elliott v. Carr et al.(a)
It has been assigned for error that the writ was not quashed on the defendant's motion. I will not now inquire into the question what would have been the effect of quashing this writ, after judgment by default, inasmnch as I am of opinion that the defect here complained of, was a proper case for a demurrer to the writ, or petition, rather than a ...
To continue reading
Request your trial
-
Blodgett v. Schaffer
... ... Amendments are allowed as ... to form, but not as to substance. Parker v. Rhodes, ... 79 Mo. 88; Lumpkin v. Collier, 69 Mo. 170; ... Scoville v. Glasner, 79 Mo. 449; Fields v ... Maloney, 78 Mo. 172; DeLoach v. Bank, 27 Ala ... 444; Blanks v. Rector, ... Ebling, 2 Mo.App. 15; Krinske v. Railroad, 77 ... Mo. 362; Stone v. Ins. Co., 78 Mo. 655; State to ... use v. Burtis, 34 Mo. 92; Payne v. Collier, 6 ... Mo. 321; Hicks v. Ellis, 65 Mo. 176; Hanly v ... Dews, 1 Mo. 15; Gibson v. Chouteau, 45 Mo. 171; ... Dunham v. Hilfong, ... ...
-
Stone v. Wendover
...Thorn v. Watson, 10 Ill. 26; Smith v. Erer, 21 Ala. 38; Hathaway v. Jones, 21 Ark. 109; Sheperd v. Bank of Missouri, 15 Mo. 141; Payne v. Collier, 6 Mo. 321; Ramsey v. Gross, 9 Gill, 56; Buckner v. Bush, 1 Duv. 394; Currens v. Radcliff, 9 Iowa, 309; Granger v. Buck, 3 Iowa, 570. LEWIS, J., ......
-
Branstetter ex rel. Branstetter v. Rives
...Mo. 256. The learned counsel for the respondent has called our attention particularly to an early decision of this court--Payne v. Collier, reported in 6 Mo. 321--in which Judge McGirk says, that a mere irregularity is not the subject of error; but that case bears no analogy to this. Collie......
-
Hicks v. Ellis
...made by the plaintiff as fatal to the defendant's case. 1 SUMMONS: sufficiency of. As to the first objection, the case of Payne v. Collier, 6 Mo. 321, is, we think, sufficiently in point to be decisive of it. In that case the writ required the defendant to appear before the judge of the cir......