State ex rel. J.D. Tapley's Adm'rs v. Matson

• Decision Date: 31 October 1866
• Citation: 38 Mo. 489
• Parties: STATE TO THE USE OF J. D. TAPLEY'S ADM'RS, Respondent, v. JAMES T. MATSON et als., Appellants.
• Court: Missouri Supreme Court

38 Mo. 489

STATE TO THE USE OF J. D. TAPLEY'S ADM'RS, Respondent,

v.JAMES T. MATSON et als., Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from Ralls Circuit Court.

E. B. Ewing, for appellants.

The petition shows no cause of action whatever, and, although there was no motion in arrest, the judgment should be reversed if the petition is so defective that no judgment could be rendered. A glance at the petition discloses the absence of any averment showing the right of plaintiff to sue; it fails to show in what character they sue, or that they are in any manner interested in or connected with the alleged breaches of the bond. For aught that appears in the petition, the plaintiffs are total strangers to the cause of action attempted to be set forth, whether areditors, distributees, or administrators, is not alleged; and there is no averment which by any reasonable intendment could determine their relation to this action, or the transactions described in the petition.

The words “administrator,” &c., following the name of the plaintiff, are only descriptive of the person, and are insufficient to show that the plaintiffs (if they are administrators) sued in their representative capacity-- Sheldon v. Hay, 11 How. Pr. 12.

In an action by an administrator as such, the complaint should by some appropriate averment show that the action is by the party in his representative character, and not as an individual--Bright v. Currie, 5 Sand. 433.

G. Porter, for respondent.

The goodness of the petition cannot be enquired into, as there was no demurrer or motion in arrest in the court below, and the attention of the court below not called to the pleadings as to their sufficiency--§§ 33 & 34, art. 14, R. C. 1855, p. 1300; 10 Mo. 515; 13 Mo. 215 & 455, and other cases decided by this court.

FAGG, Judge, delivered the opinion of the court.

The first question that arises in this case is as to the legal sufficiency of the petition. It is contended that such a question ought not to be considered here, for the reason that there was no demurrer or motion in arrest of judgment in the court below; and in accordance with the provisions of §§ 33 & 34, art. 14, of the “Act in relation to practice in civil cases” (R. C. 1855), and the former decisions of this court, it is now too late to take advantage of it. An examination of the authorities cited leads me to the conclusion that in these cases this point was not raised at all. In the case of Bateson v. Clark, 37 Mo. 31, this point was considered at some length, and decided contrary to what is claimed by the counsel for respondents as the opinion of the court in the cases cited in 10 and 13 Mo. In the case of Bateson v. Clark et al. the distinction between matters of error and matters of exception was drawn by the court in its construction of the two sections of the statute referred to in connection with § 35 of the same chapter. After stating the fact that the “record proper is the petition, summons, and all subsequent pleadings, including the verdict and...