Swearingen v. Knox

• Decision Date: 31 March 1846
• Citation: 10 Mo. 31
• Parties: SWEARINGEN, SAMUEL & DAVIS v. KNOX, ADMINISTRATOR, &C.
• Court: Missouri Supreme Court

10 Mo. 31

SWEARINGEN, SAMUEL & DAVIS

v.KNOX, ADMINISTRATOR, &C.

Supreme Court of Missouri.

March Term, 1846.

ERROR TO ST. LOUIS CIRCUIT COURT.

GEYER, for Plaintiffs. 1st. The case was set on the trial docket for the 21st May, and when it was called on that day there were demurrers undisposed of, so that according to the standing rules of the court, it was postponed until the next calling of the law docket. No reason is assigned, or appears on the record, for trying the issues out of the order prescribed by the rules. This is an irregularity, for which the verdict and judgment ought to have been set aside, on the motion of the defendants below. The overruling of the motion was, then, manifest error, That there was irregularity in taking up the cause out of its order, there can be no question. That the motion of the defendants was in time, is equally clear. 2nd. There was both error and irregularity in allowing an amendment to be made in the record at a term succeeding that at which the judgment was rendered, pending a motion to set aside that judgment, upon the ex-parte application of the plaintiff, without any notice to the defendant. Curry v. Henry, 3 Johns. 140; Kilpatrick v. Rose, 9 Johns. 78. 3rd. The application of the plaintiff was for an amendment of the judgment, and the court proceeded to render a verdict on issues not before tried,--to determine issues of law not before determined,--and re-enter the identical judgment before rendered, all of which was done without notice to the opposite party, and while a motion to set aside the former judgment was pending; a proceeding altogether without warrant of law, and in total disregard of the rules of practice. 4th. Assuming that the court might and did suspend its rules, and that it might do so without notice to any party at discretion, still there is error in sustaining the demurrers of the plaintiff to the fourth and fifth pleas. The declaration avers that the note sued on was made by the defendants, by and through Alex. T. Douglass. The pleas deny the power and authority of Douglass to make the note--thus tendering an issue directly on the authority of the alleged agent, which it was competent for them to do. That authority is made a constituent of the plaintiff's right, it is according to the declaration, a cardinal fact, without proof of which he could not sustain the action. It was not necessary to deny the execution of the note on oath. The note is not charged to have been executed by the defendants. If it had been so charged, it would still have devolved on the plaintiff to prove the authority on the trial. Wahrendorff et al. v. Whitaker et al. 1 Mo. R. 205. It is no objection to the plea, that the same matter would have been put in issue, by the plea of non-assumpsit,--the same thing may be said of a plea of fraud, infancy, and a great variety of defenses, which may be specially pleaded, or will avail the party on the general issue. In this case the plaintiff has chosen to make the averment of authority special,--and thus has made a material fact, directly traversable. 5th. The bill of exceptions shows that the cause was taken up, and the issues of fact tried by the court, in the absence of the defendants and their counsel. In this also there is error; the defendants had put themselves upon the country, and were entitled to a trial by jury, of which they could not be deprived by the act of the court. The mere fact that they were not found insisting on a trial by jury, is not a waiver of their right. Having put themselves upon the country, the court had no right to assume a waiver,--they never submitted the issues to the court,--and without their consent, the plaintiff could not transfer the trial from the country to the court.

DRAKE, for Defendant.

SCOTT, J.

Henry Clark sued the plaintiffs in error, who were defendants below, in assumpsit, on a promissory note executed by them, throught A. T. Douglass, for $850. The declaration contained two counts on the note, and also the common counts. There was an averment in the counts on the note that it was executed by the defendants, through their agent, A. T. Douglass.

To this declaration the defendants pleaded non-assumpsit, set-off, and payment;--and to the two counts on the note pleaded, first, that Douglass was not their agent, and had no power to make said note; and secondly, that...