Wales v. Chamblin
| Decision Date | 31 March 1854 |
| Citation | 19 Mo. 500 |
| Parties | WALES, et al., Respondents, v. CHAMBLIN, Appellant. |
| Court | Missouri Supreme Court |
1. In a suit upon a note, under the code, an answer, which denies any knowledge sufficient to form a belief as to whether the plaintiffs compose the firm to whose order the note was payable, is erroneously stricken out.
Appeal from St. Louis Court of Common Pleas.
E. Casselberry, for appellant.
Knox & Kellogg, for respondents.
This was an action on two promissory notes, payable to O. Wales & Sons, executed by the defendant. The plaintiffs were Oren Wales, Dexter Wales and Oliver H. Wales. The notes, it seems, were annexed to the petition, which stated that the plaintiffs are partners, under the name and style of O. Wales & Sons. The defendant, for answer, admitted that he executed the notes annexed to the petition of the plaintiffs, payable to the firm of O. Wales & Sons, but he did not know the names of the persons composing said firm, nor has he any knowledge thereof sufficient to form a belief, and required proof of all the averments and allegations in the petition, except such as were admitted. This answer was stricken out by the court below, and judgment was given for the plaintiffs as for want of an answer.
1. The fact, whether the plaintiffs constituted the firm of O. Wales & Sons, was a material one, as on the truth of its existence depended their right to maintain this suit. Under the first clause of the seventh section of the sixth article of the present practice act, the existence of this fact was properly put in issue, and the plaintiffs should have proved it. The issue being properly made, and the fact involved in it a material one, the court, on motion, had no right to indulge in any speculations, whether it was true or false; that was beside its province; its sole duty was to submit the issue to a jury for trial.
Judge Ryland concurring, the judgment is reversed, and the cause remanded; Judge Gamble not sitting.
To continue reading
Request your trial
-
Lanyon v. Chesney
... ... upon trial the plaintiff would be required to prove when ... denied, the answer could not be stricken out. Wales v ... Chamblin, 19 Mo. 500; Burrall v. Moore, 5 Duer (N ... Y.) 654; Taylor v. Palmer, 31 Cal. 257. (7) ... Under the civil code the ... ...
-
Baker v. Supreme Lodge Knights of Pythias
...R. A. 838; 13 L. R. A. 637; 48 Am. Dec. 658; 96 New York, 614; 120 Mass. 550; 19 Wallace U. S. 533; 6 Am. Rep. 115; 13 Allen (Mass.), 318; 19 Mo. 500; 39 Mo. 122; 45 N.Y. The evidence was without conflict. There was no question of fact for a jury to pass upon and the peremptory instruction ......
-
State ex rel. Davis v. Rogers
...cases in nowise differing in principle from the answer in question. Rhine v. Montgomery, 50 Mo. 566; McAdow v. Ross, 53 Mo. 202; Wales v. Chamblin, 19 Mo. 500; also Cavender v. Waddingham, 2 Mo. App. 555, 556; Nelson v. Brodhack, 44 Mo. 596. The proper practice in a case like this, where th......
-
Hallowell v. Page
...and the court should have permitted the amendment of it so as to make it the answer of Page as well as the other defendants. (Wales v. Chamblin, 19 Mo. 500; Davis v. Christy, 8 Mo. 569.) III. The bill or check sued on does not contain the words “for value received,” and is not such a bill a......