Tunstall v. Hamilton

• Citation: 8 Mo. 500
• Parties: TUNSTALL v. HAMILTON.
• Decision Date: 31 January 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 500

TUNSTALL

v.HAMILTON.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO THE COURT OF COMMON PLEAS OF ST. LOUIS COUNTY.

DRAKE and RANNELLS, for Plaintiff. The court below erred in refusing the continuance demanded, and in forcing the defendant below to a trial, because the plaintiff below had been allowed, at the term when the case was called for trial, to amend his declaration. The principle on which it is contended there was error in this proceeding of the court, is settled in the case of Risher v. Thomas, 1 Mo. R. 739. and afterwards affirmed in Dempsey v. Harrison & Glasgow. Mo. R. 267.

WALRER, for Defendant 1. There was no error in refusing a contindance at the February term. 2. There was error in the decision of the court, sustaining the demurrer to the three special counts in the declaration

TOMPKINS, J.

Robert Hamilton sued Warrick Tunstall, in the Court of Common Pleas of Saint Louis county, at the November term, 1842. The declaration contained three counts on a note, and the common counts. Judgment was given for Hamilton, to reverse which Tunstall prosecutes this writ of error. At the November term the defendant, Tunstall, demurred to the three special counts, and pleaded the general issue to the common counts. The demurrer was sustained. At the February term the plaintiff, Hamilton, filed three amended counts, by leave of the court, and to them the defendant pleaded the general issue; and the court gave a judgment for the plaintiff at that term. The bill of exceptions shows, that, after the plaintiff filed his amended counts at the February term, the defendant, Tunstall, moved for a continuance of the cause, and that the court overruled his motion. Tunstall excepted to the opinion of the court in overruling his motion; a new trial was moved for, and the motion was overruled, and exception to such overruling taken by the defendant.

By the act establishing the Court of Common Pleas of St. Louis county, see Laws of 1840, all causes were to be tried at the return term thereof; but the act of 16th January, 1843, p. 57 of Pamphlet act, provides that issues shall be made up in all suits brought in the Court of Common Pleas, as provided by the act of the 17th of March, 1835, in relation to Practice at Law (that is, at the return term of the writ); and, after the issues are made up, shall stand continued to the second term. The amended counts were filed in this case some time after the act of 16th of January, 1843. The suit stood then, after the counts were amended, as a return to that term; or, rather, had a stronger claim to a continuance than a return to that term; for the defendant must have...