Simon v. Ryan.

• Citation: 73 S.W. 353,101 Mo. App. 16
• Court: Court of Appeal of Missouri (US)
• Decision Date: 17 March 1903
• Parties: SIMON et al. v. RYAN et al.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 353

101 Mo. App. 16.

SIMON et al. v. RYAN et al.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

JUSTICES OF THE PEACE—APPEAL—TRIAL DE NOVO—NEW DEFENSE—TIME FOR MAKING.

1. Though, on the trial of an action against partners in a justice court, defendants failed to file an affidavit denying the partnership, as required by Rev. St. 1899, § 746, they could file such affidavit and make such defense on appeal to the circuit court, as the action is tried anew in the latter court.

2. The refusal of the trial court to grant permission to defendants, sued as partners, to file an affidavit denying the partnership, because it was too late—the cause being then on trial— was error.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by J. Simon and another against J. J. Ryan and others. Judgment for plaintiff on trial de novo after appeal from a justice, and from an order sustaining defendants' motion for a new trial plaintiffs appeal. Affirmed.

A. L. Hirsch, for appellants. Wilson A. Taylor, for respondents.

Statement of Facts and Opinion.

GOODE, J.

This attachment action was begun before a justice of the peace on an account for goods sold and delivered. The statement of account filed before the justice was in this form:

                J. Simon.                       Julian Simon
                              J. Simon & Son
                   Distillers and Wholesale Liquor Dealers
                            No. 817 Franklin Ave
                              St. Louis, Mo., Dec. 4th, 1900
                  Sold to Mrs. Anna V. Ryan, and J. J. Ryan,
                E. P. Ryan, and M. V. Hartley, copartners, doing
                business as Ryan & Company:
                   1 gal. raspberry syrup................ $ 1 00
                  25 bottles dry catawba.................   3 50
                  25 bottles sweet catawba...............   3 50
                   6 bottles angelica, 20c...............   1 20
                   1 bottle absinthe.....................   1 25
                   Wine bbl. and bottle peppermint.......   2 00
                   Bottles and stamps....................   2 50
                                                          ______
                                                          $14 95
                

The statement contained four paragraphs similar to the foregoing.

A plea in the nature of a plea in abatement was filed before the justice, but no defense to the merits was pleaded. The trial in that court resulted in a judgment in favor of all the defendants on the plea in abatement, and in favor of the defendants Anna V. Ryan and J. J. Ryan on the merits; judgment being entered against the other defendants, E. P. Ryan and M. V. Hartley, for the balance due on the account. Plaintiffs appealed from the judgment of the justice to the circuit court, where the case came on for trial on the merits at the February term, 1902—a jury being waived, and the cause heard by the court—with the result that judgment was entered against all the defendants for $62.25. During the progress of the trial the plaintiffs offered evidence tending to show they had sold to a firm doing business under the name of Ryan & Co. the goods mentioned in the account. Defendants' counsel endeavored to prove that J. J. and Anna V. Ryan were not members of the firm at the time said goods were sold and delivered. This evidence was excluded by the court because no affidavit had been filed denying the partnership, as is required by section 746 of the Revised Statutes of 1899. When this ruling was made, d...