Smith v. Dean
| Decision Date | 31 October 1853 |
| Citation | 19 Mo. 63 |
| Court | Missouri Supreme Court |
| Parties | SMITH & KINZER, Plaintiffs in Error, v. DEAN, Defendant in Error. |
1. Under the new practice, a party suing upon a bond must state his title in his petition. It is not sufficient to aver that he is the legal holder.
2. The statute of limitations cannot be taken advantage of by demurrer.
Error to St. Louis Circuit Court.
Knox & Kellogg, for plaintiffs in error.
1. It was not necessary to state in the petition how the bond sued on was assigned. The statement that the plaintiffs were the legal holders of the bond, as trustees of Crupper, for the benefit of his creditors, is a sufficient averment of title in said plaintiffs. 2. By the first and second sections of the third article of the act entitled “an act to reform the pleadings and practice in courts of justice,” the plaintiffs had a right to sue in their own names, whether the bond had been assigned to them by any instrument of writing or not, if they were the real parties in interest. 3. The defendant cannot avail himself of the statute of limitations, by way of demurrer, nor are the plaintiffs required to state any facts in their petition that might prevent the statute of limitations from barring their demand. The statute of limitations, under the old system of pleading, must have been pleaded, and can now only be set up by way of answer. Chitty on Pleadings, 515, 520. 3 J. J. Marsh. 363. Smart v. Bingh, 373. Smart v. Jackson, 2 Wend. 294. Jackson v. Varick, 4 Har. & J. 539. Maddox v. Stile.
Rankin and Krum, for defendant in error.
The demurrer of the defendant below to the plaintiff's petition was properly sustained by the court. The plaintiffs did not show upon the face of their petition a cause of action against the defendant. No assignment or transfer in writing of the bond sued on, to the plaintiffs, is stated in the petition. 8 Mo. 355.GAMBLE, Judge, delivered the opinion of the court.
The plaintiffs claim to recover on a bond made by the defendant, Dean, payable to one Crupper. They allege that they are the legal holders of the bond, as trustees of Crupper, for the benefit of his creditors. The bond was payable on the 2d of September. 1840. There is no allegation that the bond was assigned to the plaintiffs. The petition was demurred to and the demurrer was sustained. Two questions are presented on the demurrer: 1. Whether the title of the plaintiffs to the bond is sufficiently stated in the petition. 2. Whether the petition does not show that the action on the bond is barred by the statute of limitations.
1. We will not say how far the act requiring the assignment of bonds and notes to be by indorsement thereon, in order to enable the assignee to sue in his own name, is affected by the code of practice, which abolishes the distinction between law and equity, and requires all suits to be commenced and prosecuted in the name of the real party in interest....
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...bank for the purpose of liquidation, with the consent of the Finance Department, were developed in the evidence. The case of Smith & Kinzer v. Dean, 19 Mo. 63, cited by appellants, is not to the contrary. The petition there alleged merely the legal conclusion that the plaintiff was the lega......
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...bank for the purpose of liquidation, with the consent of the Finance Department, were developed in the evidence. The case of Smith & Kinzer v. Dean, 19 Mo. 63, cited appellants, is not to the contrary. The petition there alleged merely the legal conclusion that the plaintiff was the legal h......
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