Waldron v. Merseal

Decision Date09 January 1912
Citation162 Mo. App. 380,142 S.W. 751
PartiesWALDRON v. MERSEAL et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jefferson County; Joseph J. Williams, Judge.

Action by Charles Waldron against George Merseal and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This action was brought before a justice of the peace to recover the amount charged to be due on a promissory note executed by the defendants, George Merseal and Margaret F. Merseal, on the 16th day of August, 1901, for the payment to the plaintiff of $100, 12 months after date. The defendants did not deny the execution of the note, but pleaded a set-off. A judgment being rendered by the justice, an appeal was prosecuted therefrom to the circuit court, where the same was tried anew before a jury. It seems, however, that the plea of set-off filed by the defendants in the justice court was lost from the files, and on the day before the trial in the circuit court the defendants filed another in lieu thereof. The circuit court of its own motion struck this second plea of set-off from the record because of its being for a greater and different amount than the one filed in the justice court. Defendants excepted to such action. Another plea of set-off was then filed by leave of court, but forthwith this leave was withdrawn. Defendants saved their exception. Thereupon, before the cause was submitted to the jury, the defendants filed another pleading, by which they first alleged that the note sued upon had been paid, and then set up a cross-demand by way of set-off for $9.20. Thereupon, the case having been heard, the court of its own motion gave to the jury certain instructions which the bill of exceptions recites have been lost and cannot be set forth. The bill of exceptions states, however, that they directed that if the note in question had been executed by defendants and not paid then the jury should find for the plaintiff and that they ignored the defendants' set-off. The bill of exceptions does not show that any exception was taken to the action of the court in giving said instructions. The jury returned a verdict for the plaintiff for $160.12, being the amount of the note and interest, but made no finding for or against the defendant on the counterclaim. Judgment was forthwith entered for plaintiff in accordance with the verdict. At the same term and within four days after the trial, the defendants filed a motion for a new trial and a motion in arrest of judgment. While those motions were pending, plaintiff filed a remittitur in the sum of $9.20, the full amount of the set-off claimed. The plaintiff then filed a motion to set aside the judgment as having been prematurely entered, which motion was sustained and the judgment set aside. Thereupon the motions for a new trial and in arrest were overruled, and the court gave and entered judgment in favor of the plaintiff and against the defendants for "the sum of $150.92 in accordance with the verdict of the jury herein and the remittiur filed herein." From this judgment the defendants have perfected their appeal. Defendants make no point which renders it necessary for us to set forth the facts disclosed by the evidence. We may say, however, that in striking out the defendants' third plea of set-off—that is, the second one that was filed in the circuit court—the court was very evidently animated by a commendable desire to make defendants conform their pleading to their theory of the case as disclosed by the statement of their counsel and by their evidence.

Clyde Williams and R. A. Frazier, for appellants. H. B. Irwin and Byrns & Bean, for respondent.

CAULFIELD, J. (after stating the facts as above).

1. Defendants assign as error the action of the trial court with...

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7 cases
  • State ex rel. and to Use of Smith v. Boudreau
    • United States
    • Court of Appeal of Missouri (US)
    • May 7, 1935
    ......305. (13) The court's action in. sustaining plaintiff's motion to strike, if error at all,. was waived. Fuggle v. Hobbs, 42 Mo. 537; Waldron. v. Merseal, 162 Mo.App. 380, 383; Reynolds v. Davis, 260 S.W. 994, 996; Titus v. Development. Co., 264 Mo. 239, 240. (14) Section 1285, ......
  • Smith v. Boudreau, 23299.
    • United States
    • Court of Appeal of Missouri (US)
    • May 7, 1935
    ...The court's action in sustaining plaintiff's motion to strike, if error at all, was waived. Fuggle v. Hobbs, 42 Mo. 537; Waldron v. Merseal, 162 Mo. App. 380, 383; Reynolds v. Davis, 260 S.W. 994, 996; Titus v. Development Co., 264 Mo. 239, 240. (14) Section 1285, Revised Statutes 1929, doe......
  • Bryan v. Louisville & Nashville Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1922
    ...541; Gale v. Foss, 47 Mo. 276; Heman v. Glann, 129 Mo. 325, 31 S.W. 589; Sauter v. Leveridge, 103 Mo. 615, 15 S.W. 981; Waldron v. Merseal, 162 Mo.App. 380, 142 S.W. 751.] error first assigned is therefore ruled against plaintiff. II. In support of their contention that the demurrer to the ......
  • Bryan v. Louisville & N. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 19, 1921
    ...541; Gale v. Foss, 47 Mo. 276; Heman v. Glann, 129 Mo. 325, 31 S. W. 589; Sauter v. Leveridge, 103 Mo. 615, 15 S. W. 981; Waldron v. Merseal, 162 Mo. 380, 142 S. W. 751. The error first assigned is therefore ruled against II. In support of their contention that the demurrer to the third ame......
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