Snowden v. McDaniel
| Decision Date | 30 April 1842 |
| Citation | 7 Mo. 313 |
| Parties | SNOWDEN v. MCDANIEL. |
| Court | Missouri Supreme Court |
APPEAL FROM THE CARROLL CIRCUIT COURT.
JONES & RYLAND, for Appellant.
EWING, for Appellee.
McDaniel sued Snowden by petition in debt on a bond; judgment was rendered against Snowden, and he has brought the cause here by appeal. One of the errors assigned is, that the court overruled the plea of non est factum, filed by Snowden. It has been repeatedly held, that the plea of non est factum, although not verified by affidavit, is a good plea to an action on a sealed instrument; the omission of the affidavit merely relieves the plaintiff from the necessity of proving the execution of the instrument; all other advantages of which a party can avail himself under that plea are still open to him. The practice of the Circuit Court, in permitting motions to strike out pleas to be substituted for demurrers, ought not to be tolerated. It is not conceived on what principle such a practice is founded. In this case the plea of non est factum was disposed of by motion, and no bill of exceptions having been taken to the action of the court below, according to the practice of this court, the error cannot be examined.(a)
It is also assigned for error, that the court below refused to dismiss the suit because the plaintiff was a non-resident, and had not given security for costs before commencing his suit. The court permitted a bond for costs to be filed after the motion to dismiss was made, and then overruled the motion. It has been determined by this court that, when a non-resident commences a suit without giving security for costs, he may be permitted to file a bond for costs after a motion is made. Posey v. Buckner, 3 Mo. R. 604. (b) Judgment affirmed.
(a). Bates v. Hinton, 4 Mo. R. 78: Payne v. Snell, 4 Mo. R. 238.
(b). See Governor of Missouri v. Rector, 1 Mo. R. 638; Brown v. Ravenscroft, 1 Mo. R. 397; Steamboat “Osprey,” v. Jenkins, 11 Mo. R. 635.
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...A denial of this statement without oath admits the execution of the note as charged. The cases of Payne v. Smith, 4 Mo. 78; Snowden v. McDaniel, 7 Mo. 313, and State to v. Ferguson, 9 Mo. 288, were decided under a different law. Under the present statute (Rev. Stat., sec. 3653) the executio......
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