Pier v. Heinrichoffen

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEWING
Citation52 Mo. 333
Decision Date31 March 1873
PartiesDELOS D. PIER, et al., Appellants, v. WILLIAM HEINRICHOFFEN, et al., Respondents.

52 Mo. 333

DELOS D. PIER, et al., Appellants,
v.
WILLIAM HEINRICHOFFEN, et al., Respondents.

Supreme Court of Missouri.

March Term, 1873.


Appeal from St. Louis Circuit Court.

Fisher & Rowell, for Appellants.

“An averment in the usual form, alleging due presentment, and notice, is sustained by proof of any state of facts showing an excuse according to the custom of merchants.” (Greenl., Ev. Vol. 2, 197; Norton vs. Lewis, 2 Conn., 478; Hopkins vs. Liswell, 12 Mass. 52; Williams vs. Mathews, 3 Cowen, 252; Windham Bank vs. Norton, et als., 22 Conn., 219.)

The rejection of any material testimony by the court, entitles the party to then take his non-suit, and this court will not refuse to set it aside because the record does not show, that plaintiff could make the other points in his case, or that he was prepared with proof on the other points. (Dowd vs. Winters 20 Mo. 361.)

Slayback & Haeussler, for Respondents.


EWING, Judge, delivered the opinion of the court.

This is an action on a promissory note by the plaintiffs as indorsees against defendants as indorsers, payable at the office of Williams, in St. Paul, Minnesota; the note bears date St. Louis, October 12, 1860, and is payable on the first day of July thereafter, (1861.) The petition contains the usual averments of presentment and demand of payment at the maturity of said

[52 Mo. 334]

note, refusal to pay, protest of the same, and that defendants were duly notified thereof. The answer of defendants is a denial of the allegations of the petition. Plaintiffs made application for a continuance of the cause, on the ground of the absence of witnesses, who resided at St. Paul, by whom they expected to prove facts excusing the delay in making demand of payment, and in giving notice to the defendants. The motion for a continuance being overruled, and the cause being submitted to the court,--jury waived,--the plaintiffs read the note in evidence, and then offered to show by the certificates of protest of one Malmros, a notary public, and his deposition accompanying the same, that said note was presented for payment at the place where the same was made payable, that it was protested, and notice given the defendants on the 15th day of July, 1861. This evidence was excluded on the objection of defendants, whereupon plaintiffs took a non-suit, with leave, &c. The motion to set aside the non-suit being overruled, the cause is brought to this court by appeal.

The application for a continuance was obviously without merit. The suit was instituted in March, 1870. Immediately thereafter, as the affidavit states, steps were taken to procure the deposition of Terry, a witness residing at St. Paul, which failed, as is alleged, by reason of his temporary absence at Washington City. He remained absent however, until January, 1871, and it does not appear, that any further effort was made to take the deposition in the interim, a period of eight or nine months.

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43 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.W. (2d) 697; Ludwig v. Scott, 334 Mo. 207, 65 S.W.......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...[Basye v. Ambros, 32 Mo. 484.] Every fact which the plaintiff must prove to maintain his suit he must plead. [Pier v. Heinrichoffen, 52 Mo. 333.] Here, however, defendant's answer, by way of defense, sets up the non-performance of conditions precedent on the part of the plaintiff, and the p......
  • Verdin v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • November 26, 1895
    ...Under our Code, the facts in a pleading are constitutive, and, in order to be proved, must be distinctly alleged. Pier v. Heinrichoffen, 52 Mo. 333, and other cases. Every substantial fact which the plaintiff, in order to recover, must prove, he must also allege, so that an issue can be mad......
  • St. Louis & San Francisco Railroad Co. v. Coy, 18
    • United States
    • Supreme Court of Arkansas
    • June 1, 1914
    ...240 Mo. 48, and cases cited; 231 Mo. 605-614; 225 Mo. 478; 223 Mo. 649; 217 Mo. 83; 193 Mo. 194; 169 Mo. 388; 163 Mo. 372-375; 154 Mo. 204; 52 Mo. 333; 97 N.Y. 370. Under the Missouri practice, even though the petition was not demurred to, yet it may be attacked at any stage of the proceedi......
  • Request a trial to view additional results
44 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.W. (2d) 697; Ludwig v. Scott, 334 Mo. 207, 65 S.W.......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...[Basye v. Ambros, 32 Mo. 484.] Every fact which the plaintiff must prove to maintain his suit he must plead. [Pier v. Heinrichoffen, 52 Mo. 333.] Here, however, defendant's answer, by way of defense, sets up the non-performance of conditions precedent on the part of the plaintiff, and the p......
  • Verdin v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • November 26, 1895
    ...Under our Code, the facts in a pleading are constitutive, and, in order to be proved, must be distinctly alleged. Pier v. Heinrichoffen, 52 Mo. 333, and other cases. Every substantial fact which the plaintiff, in order to recover, must prove, he must also allege, so that an issue can be mad......
  • St. Louis & San Francisco Railroad Co. v. Coy, 18
    • United States
    • Supreme Court of Arkansas
    • June 1, 1914
    ...240 Mo. 48, and cases cited; 231 Mo. 605-614; 225 Mo. 478; 223 Mo. 649; 217 Mo. 83; 193 Mo. 194; 169 Mo. 388; 163 Mo. 372-375; 154 Mo. 204; 52 Mo. 333; 97 N.Y. 370. Under the Missouri practice, even though the petition was not demurred to, yet it may be attacked at any stage of the proceedi......
  • Request a trial to view additional results

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