Piper v. Aldrich

• Decision Date: 31 October 1867
• Citation: Piper v. Aldrich, 41 Mo. 421 (Mo. 1867)
• Parties: THEOPHILUS C. PIPER, Appellant, v. THOMAS R. ALDRICH, Respondent.
• Court: Missouri Supreme Court

41 Mo. 421

THEOPHILUS C. PIPER, Appellant,

v.THOMAS R. ALDRICH, Respondent.

Supreme Court of Missouri.

October Term, 1867.

Appeal from Webster Circuit Court.

Krum, Decker & Krum, for appellant.

I. The acts of the General Assembly enacted for the benefit of persons in the military service are personal privileges conferred on a particular class of citizens, of which they may avail themselves, or which they may waive. If the defendant fails to avail himself of this act at the time of pleading, or during the term, according to the practice Act, he cannot do it afterwards. Any other construction would amount to a repeal of the Practice Act in favor of a particular class of citizens, and ought not to be tolerated.

The Statute of Frauds enacts, “no action shall be brought,” &c, yet defendant must plead and avail himself of it. The Statute of Limitations enacts, “no action shall be brought,” &c. yet likewise defendant waives the act if he fails to set it up in his defence.

The language of the Legislature in regard to granting these extraordinary privileges to the military is the same, and by the well established rules of construction it is to be constructed in the same manner. If the defendant had answered and failed to set up this defence, certainly he could not have availed himself of it after judgment. Why? because the act confers a privilege which the party may waive. A fortiori, where defendant fails to plead at all, the same result must follow.

II. But the act has been already construed by this court in Donnell v. Stephens, 35 Mo. 441 (modifying Bruns v. Crawford, 34 Mo. 330). If the acts were defences to the action they would be unconditional, but they are allowed as reason for a continuance. It must follow that a defendant who fails to present his claim for a continuance cannot, after judgment (in this case two years after), have the judgment set aside.

Day & Julian, for appellant.

The court erred in sustaining the defendant's motion to quash the excution and vacate the judgment. It is submitted that the two acts of the Legislature of May 15, 1861, and March 17, 1863 (Sess. Acts 1861, p. 46; Sess. Acts 1863, p. 30), as to contracts on which a right of action accrued prior to the passage of the same, are unconstitutional--11 Wis. 358; 1 Const. 129; 1 Mo. 116; 4 Mo. 50.

Admitting the acts complained of to be valid, the court below erred in vacating the judgment. There was personal service had on the defendant; he failed to appear until a year and a half after judgment was rendered against him, when he appealed and made the motion complained of, which was by the court sustained. In the case of Donnell v. Stephens, decided by this court, 35 Mo. 441, the court held the acts under consideration did not prohibit commencing an action, and only gave the defendant the right to show that he was in military service and to have the case continued--a right which the defendant in this case waived by failing to appear. The acts in question would be governed by the same rule of law as the Statute of Limitations or Statute of Frauds: a party waives the right by failing to plead them. The effect of the order of the court quashing the execution and vacating the judgment was to dismiss the suit-- Martin v. Martin's Adm'r, 27 Mo. 227.FAGG, Judge, delivered the opinion of the court.

In the examination of this case, we shall confine ourselves exclusively to the points raised by the brief of appellant's counsel, there being no appearance for the respondent.

At the spring term, 1864, of the Webster Circuit Court a suit was instituted by Piper against Aldrich upon a promissory note. Service was obtained by leaving a copy of the petition and writ at the usual place of abode of the defendant with a white member of his family over the age of fifteen years. No appearance was entered for the defendant Aldrich at the return term of the writ, and the plaintiff prosecuted his suit to a final judgment. At the spring term, 1866, the defendant appeared by his attorney and filed a motion alleging that at the time of the commencement of the suit, as well as the rendition of the judgment against him, he was in the actual military service of the State and of the United States. The court was thereupon asked to set aside the judgment, and also to quash an execution that had been issued thereon. The motion was sustained and a judgment rendered in favor of the defendant for costs.

It is insisted that the provisions of the act of 1861, enlarged and extended by the act of 1863, under which this proceeding was had, cannot be so construed as to entitle the respondent to the relief granted by the Circuit Court; that the intention of the Legislature was simply to confer upon...