Steamboat Osprey v. Jenkins

• Decision Date: 31 October 1845
• Citation: 9 Mo. 643
• Parties: STEAMBOAT OSPREY v. UPTON JENKINS.
• Court: Missouri Supreme Court

9 Mo. 643

STEAMBOAT OSPREY

v.UPTON JENKINS.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

CROCKETT & BRIGGS, for Appellant. 1. That the affidavit annexed to the complaint is insufficient. He swears only to the “best of his knowledge;” whereas it should have stated the complaint to be absolutely true. 6 Mo. R. 357-8; Chitty on Bills, 348. 2. That before the time for pleading expired, the plaintiff in error moved to dismiss the suit for want of security for costs, and whilst this motion was pending and undecided, judgment by default could not be properly entered. The defendant in the court below was not in default, having appeared to the action in moving for security for costs; but was not bound to plead until the plaintiff had placed himself, rectus in curia, by giving the bond required by law, which has not yet been done. 3. That the default should have been set aside upon the affidavits filed.

GOODE & CORNICK, for Appellee. 1. Relative to the 1st, 2nd and 4th assignments of error, the uniform practice of this court has been “not to disturb a discretionary act of the court below, unless the record discloses a case of great hardship.” According to the record it would have been a great hardship had the court acted otherwise than it did. 2. There is no law, statute, custom, or rule of court, by which the third assignment of error is sustained. 3. The affidavit is sustained by the decision of Bridgford et al. v. Steamboat Elk, 6 Mo. R. 356. 4. The plaintiff in error is not entitled to be heard. There should have been an order of the court below obtained, permitting the defense to be conducted by the master, owner, agent, or consignee of the steamboat. See Dig. 1835, p. 103, § 7

MCBRIDE, J.

Jenkins, on the 18th April, 1844, filed his complaint in the office of the clerk of the Circuit Court of St. Louis county against the Steamboat Osprey, navigating the waters of this State, for damages sustained in the shipment of 130 barrels of apples from Cincinnati, Ohio, to Galena, Illinois. Jenkins verified the facts alleged in the complaint by the following affidavit: “Upton Jenkins being duly sworn, states that the facts in the foregoing declaration are true, to the best of his knowledge, and that said cause of action has accrued within six months.” Signed, &c.

A warrant issued on the same day returnable to the 3rd Monday in November, being the 18th of the month. On the 23rd November, 1844, the attorney for the boat filed a motion to compel the plaintiff, who was a non-resident, to give security for costs. Rev. Code, 1835, p. 127, § 8. On the 25th of said month, and before the disposition of the motion which had been filed two days preceding, the court entered a judgment by default against the defendant for want of a plea, and ordered an inquiry of damages On the 4th December the defendant filed a motion to set aside the judgment by default. On the 6th December the motion for security for costs was heard and sustained, and an order made requiring the plaintiff to give the security on or before the 9th of said month, when the plaintiff forthwith gave the security required. On the 9th December another motion was filed by the boat to set the judgment aside, and for leave to plead to the merits of the action, which was overruled. An assessment of damages was made on the same day and judgment, whereupon the defendant excepted and appealed to this court.

The errors assigned, and which we shall notice, are: 1. That the affidavit was insufficient upon which the warrant issued. 2. That the court erred in rendering a judgment by default against the defendant, before a...