White v. Collier

• Decision Date: 30 September 1837
• Citation: 5 Mo. 82
• Parties: WHITE & CROSS v. COLLIER.
• Court: Missouri Supreme Court

5 Mo. 82

WHITE & CROSS

v.COLLIER.

Supreme Court of Missouri.

September Term, 1837.

APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY.

BRICKEY, for Appellants. The first point relied upon by the appellants is, the Circuit Court erred in refusing the defendants below a new trial. Secondly, the Circuit Court erred in trying the cause at the return term of the writ. Because the bill obligatory, and the assignments thereon were not filed with the clerk as required by law. Third, the Circuit Court erred in disregarding the defendant's affidavit for a new trial. Fourth, the Circuit Court erred in not permitting the defendants to plead their off-set against the assignor of the writing obligatory sued upon, according to the defendants' affidavit.

As to the first point, there is no doubt if the affidavit of White had been made before the cause was tried that he had a just off-set against the action, and could not go to trial at that term. The court would have been bound to have granted a continuance then; the reason why the affidavit was not made for a continuance is explained, and shown to be the sickness and inability of the defendants to attend court. These facts appear from the affidavit set out in the bill of exceptions. The law is clear as to the power of the court to grant a continuance for good cause shown. See Digest, p. 449, §§ 4 and 5, ““Petition in Debt.”

It may be said, that inasmuch as the defendants omitted to appear and make their affidavit for a continuance in the first instance, to enable them to prove the off-set, it was too late after judgment to move for a new trial, notwithstanding the affidavit. But to this argument I will answer, that the defendant states in his affidavit he had no idea or expectation that the cause would be tried at the first term; and also, that he was too sick, and unable to come to court within the time prescribed for pleading to this form of action. Upon the presumption then that the affidavit is true, and that there was justly due and owing to the defendants upwards of one hundred dollars from the assignor of the plaintiff, there is manifestly a great injustice done to to defendants by the decision of the Circuit Court in refusing to grant a new trial for the causes before shown, and such as this court will remedy.

As to the second point, the statute declares “that the petition, together with the assignments, shall be filed in the clerk's office, and a writ of summons or capias may be served out, executed and returned in the same manner and with the like effect as upon a declaration in the ordinary form”--see Digest, 449, § 3. Now it would seem from this law that the plaintiff, suing by petition and summons, was bound in the first instance to file with the clerk the petition and the obligation, &c., before a writ could issue; and if he omitted or neglected to do so, and a summons should issue, and the sheriff serve the same on the defendant, as in this case, and immediately after the service of the writ the defendant should go to the clerk's office for the purpose of inspecting the obligation as well as the assignments upon which he was sued, and should be informed by the clerk that the law had not been complied with, that no such papers had been filed with him: I ask, how is it possible for the defendant to make that preparation for his defense and trial at the next court, when the law requires him to plead within the two first days of the term, or within such time as the court shall direct? In the ordinary course of judicial proceedings, a defendant has several days to plead, and, if it become necessary, he can then ask leave of the court for a longer time to plead. It never could have been the intention of the Legislature, in passing the petition and summons law, to have created a trap to surprise the defendants, who might have a just cause of defense, as in the present instance. Should it be asked why this defense was not set up in the proper time limited by the statute, I answer, first, the obligation not being filed with the clerk, as the law absolutely requires, was well calculated to deceive the defendants, and induce them to believe that the cause could not be tried at the first term; and secondly, according to the affidavit, the defendant was not able to come to court until judgment was given against him, and then only impelled by necessity, sick as he was, when he was informed of the proceedings against him.

The third point may be already considered; for, if the reasons above urged have any weight in them, it was the duty of the court to have considered the affidavit on a motion for a new trial as they would have done for a continuance in the first place; and the more especially when it is declared by the affiant that in consequence of his indisposition he was unable to see and consult with his counsel as to his true defense, when, had the court granted the new trial as prayed for, the defendants could have had the benefit of the advantage of consulting with their counsel. With regard to new trials, the statute has made provisions that the costs shall abide the event of the suit, or be paid by the party to whom such new trial is granted, according to the order of the court--see Rev. Code, p. 470, § 2. The injustice of this case will appear, when it is considered that the defendant in this case was sick, and unable to attend court to apprise his counsel of the true nature of his defense. The fact that the plaintiff did not comply with the law in filing his bill obligatory with the clerk as the law requires, induced the defendants to suppose the cause could not to tried the first term.

That the defendants were taken by surprise in not being allowed to bring in their off-set against Fulkerson, the assignor of the bill obligatory, and that they had a right to do so, will not be denied, because the statute provides “that the obligor or maker shall be allowed every just set-off and discount against the assignee or assignors, before judgment.” Also, “that the nature of the defense of the obligor or maker shall...