Smith's Ex'r v. Benton

• Decision Date: 31 January 1852
• Citation: 15 Mo. 371
• Parties: SMITH'S EX'R v. BENTON.
• Court: Missouri Supreme Court

15 Mo. 371

SMITH'S EX'R

v.BENTON.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO COOPER CIRCUIT COURT.

HAYDEN, for Plaintiff. 1. The answer of the defendant presents no legal bar to the plaintiff's action. It does not pretend to show that he, Benton, ever paid the demand sued for, nor does it set forth such a state of facts as ought to discharge him therefrom. On the contrary, it contains a mass of confused matter, carrying upon its face an attempt to concoct a defense, with a view to mislead, without the approbation of his own conscience, and evincing a greater desire to have the political difficulties between himself, Judge NAPTON and others, as well as the very good credit of his own paper in June, 1821, investigated, than the justice of the demand sued for inquired into. His defense does not set up or aver the fact that he ever paid the debt, or that he relies upon the statute of limitations to screen him from the payment of it. It is true that he, in the form of an unskilled county-court lawyer, intimates in his answer that the debt has been settled, and that, by the statute of limitations and lapse of time, the law cannot untie his purse or open the interstices so wide as to enable the ministerial officer of the law to extract for the widow and children of his unceasing political and real friend, the lamented Thomas A. Smith, the debt sued for. I insist that if the defendant relied upon payment and satisfaction of the debt, or upon the statute of limitations, he should have set each defense up and relied upon them respectively in his answer as bar to the action. This he has not done, except as above stated, and therefore he has shown no ground to stand upon in his defense. 2. The defendant's answer, such as it is, ought to have been verified by his affidavit, or by the affidavit of his agent or attorney, to the effect that such an affiant believed the same and the matters therein as stated to be true. This was not done; although by the statute under which he answered it is expressly required. See Law, Reform, art. 7, § 2, p. 82. For the want of the affidavit, as well as for the want of legal substance in the answer, it ought to have been stricken from the files in the cause, upon the motions of plaintiff therefor, and judgment rendered in her behalf for her debt, &c., as for want of an answer by the defendant to her action. The pretended answer was in fact a legal nullity, and therefore the plaintiff was not bound to contest the truth or falsehood of anything squinted at in the answer. 1 Bac. Abr. 99, title Affidavit. 3. The court erred in refusing to giving to the jury the fourth instruction as prayed for by the plaintiff, as also in giving the two instructions as prayed for by the defendant. The fourth instruction of the plaintiff, which was refused by the court, affirms the principle that twenty years' lapse of time, between the time the debt became due and the time the suit was commenced, did not, in law, amount to a conclusive bar to the plaintiff's right of recovery, but that the jury had a right, in their inquiry, to look to the facts and circumstances of the case in determining that question. The first instruction of the defendant asserts the principle that twenty years from the time that the $750 was paid and credited upon the bond sued on, was conclusive evidence of payment as a bar to the plaintiff's right of recovery, and the second instruction affirms the fact that there was no testimony given in the cause to repel the presumption of payment arising out of the fact of the lapse of time between the credit and the commencement of the suit. 4. The Circuit Court ought to have set aside the verdict of the jury and have granted a new trial of the cause for reasons set forth in the plaintiff's motion therefor.

ADAMS & LEONARD, for Defendant. 1. The answer of the defendant was properly verified by affidavit, according to the true intent and meaning of act entitled “An act to reform the pleadings and practice in courts of justice in Missouri,” approved 24th February, 1849. The answer was subscribed by the defendant himself, and sworn to before a proper officer, and is in itself an affidavit. The jurat of the officer is in proper form and is properly authenticated by the certificate and seal of the Secretary of the United States. See Webster's Dic.; 1 Kinney's Law Comp. 13; Belden v. Devoe, 12 Wend. 223; 3 Cond. R. 190; 3 Johns. R. 540; 13 Johns. R. 423; 4 Cowen, 47; Hays v. Bouthalier, 1 Mo. R. 347; 1 Dall. 160; 8 Mod. 823; State v. Meddleton, 5 Porter's R. 484. 2. The objection to the verification of the answer is a mere formal objection, that does not touch the merits of the case, and even if well taken at the Circuit Court, is now after a trial and verdict for the defendant, no ground for the reversal of judgment. The substance of the law is, that neither party shall set up, as a cause of action or ground of defense, so as to put the adverse party to the proof, any fact that he will not verify by oath. Here the answer is verified by the defendant's oath, and if it be untrue, he subjects himself to the same moral and legal penalties that he would have been subjected to, had he appended the most formal affidavit to his answer. 3. The lapse of twenty years is a presumption of payment, and there was no evidence to rebut this presumption; and therefore, the ruling of the court below upon the instructions, and the motion for a new trial was...