State v. Lydy

• Citation: 146 S.W. 789
• Parties: STATE ex rel. GREENE COUNTY v. LYDY et al.
• Decision Date: 28 March 1912
• Court: Missouri Supreme Court

146 S.W. 789

STATE ex rel. GREENE COUNTY v. LYDY et al.

Supreme Court of Missouri.

March 28, 1912.

Rehearing Denied April 23, 1912.

PLEADING (§ 193)—DEMURRER—GROUNDS.

Though in an action for a breach of the official bond of the judge of a probate court the plaintiff did not file with its petition the bond or a copy thereof, its failure to do so cannot be raised by demurrer.

In Banc. Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by the State, on the relation of Greene County, against Grant G. Lydy and others. From a judgment for defendants, relator appeals. Reversed, with directions.

James H. Mason and Neville & Gorman, for appellant. J. T. White and Hamlin & Seawell, for respondents.

BROWN, J.

The issues in this case are precisely the same as those decided by this court in banc in State ex rel. Buchanan County v. Imel, 146 S. W. 783, at this term, but not yet officially reported, except that in the case at bar judgment was rendered in favor of defendant Lydy upon a demurrer which, in addition to assailing the constitutionality of part of section 10,695, R. S. 1909, also alleges that no bond is filed with said petition nor is a certified copy thereof filed. The failure of the plaintiff to file with its petition the official bond given by the defendant as judge of the probate court of Greene county or to file a copy of such bond with its petition cannot be raised by demurrer. Hannibal & St. Joe Railroad Company v. Knudson, 62 Mo. 569, loc. cit. 571; State ex rel. Gilbert v. Eldridge, 65 Mo. 584, loc. cit. 586; Christie v. Missouri Pacific Railway, 94 Mo., loc. cit. 456, 7 S. W. 567.

As the plaintiff's petition states a cause of action against the defendant, we will reverse the judgment of the circuit court of Greene county, and direct it to overrule defendant's demurrer and try the cause pursuant to the law as announced in our opinion filed in the case of State ex rel. Buchanan County v. Imel, supra.

It is so ordered. All concur except WOODSON and GRAVES, JJ., who dissent.