Sutter v. Streit

• Decision Date: 31 March 1855
• Citation: 21 Mo. 157
• Parties: SUTTER, Appellant, v. STREIT, Respondent.
• Court: Missouri Supreme Court

21 Mo. 157

SUTTER, Appellant,

v.STREIT, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. Abill of exceptions cannot be filed after the term at which the cause was tried, unless by consent.

2. The date when an account sued upon accrued is not a material averment in a petition, and is not admitted by a failure to deny it in the answer.

3. A finding must state facts, not the evidence.

4. A finding of facts is regarded as part of the record proper, and no bill of exceptions is necessary to preserve it.

Appeal from St. Louis Law Commissioner's Court.

This was an action brought by Sutter to recover a balance of one hundred and fifty dollars, alleged to be due to him from Streit, on account of hauling staves.

The answer admitted the hauling, but alleged a settlement and satisfaction on the 13th of January, 1853.

When the case was called for trial, the plaintiff, by consent, filed a supplemental petition, merely stating, in addition to the allegations in the original, that the account sued upon accrued between the 20th of April and last of May, 1853, which was subsequent to the date of the settlement set up in the answer.

Upon this state of the pleadings, without any additional or amended answer, the case was tried by the court without a jury. The finding of facts states: “The plaintiff was introduced as a witness, sworn and testified. His testimony to the matter of indebtedness and the settlement was by no means satisfactory to the court. Upon an inspection of the pleadings, the court finds there is no date in the original petition of the time when the hauling mentioned was done by the plaintiff for the defendant. The defendant, by his answer, admits the indebtedness as charged in the original petition, and sets up payment, and proves it; but the supplemental petition alleges a time subsequent to the 13th January, 1853 (the time of the alleged settlement), as the time when the indebtedness accrued, which is not denied by the defendant. On this state of the case the court is of opinion that the plaintiff is entitled to recover the amount of his claim.”

There was a bill of exceptions containing the evidence, which was presented to the court below on the last day of the term, but not signed until the next day, when it was filed as of the day previous.

Hart & Jecko, for appellant.

S. H. Gardner, for respondent.

SCOTT, Judge, delivered the opinion of the court.

1. Objections being made to the bill of exceptions, it will not be noticed, as it was not filed within time, it having been signed after the term at which the cause was tried, and no consent of record appearing. The case, then, will stand upon the record proper.

2. Although there was no date to the account filed with the plaintiff's petition, it was competent for him to show, by evidence, that in point of time it was contracted subsequently to the period of the settlement stated...