Boyd v. Holmes

9 Mo. 711

• Court: Supreme Court of Missouri
• Decided: January 15, 1846
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the court.

This was a petition to foreclose a mortgage by the appellants against the appellee, who filed several pleas to the suit. They were all either stricken out or overruled, and it appears the cause was then submitted to the court, although there was no issue. The mortgage was read? and the plaintiff asked the court to declare the law to be, that he was entitled to recover. The court refused to do so and the plaintiff excepted, and took a non-suit, and after an unsuccessful motion to set it aside, appealed to this court.

There being no plea in the cause, the truth of the petition stood admitted, and it was the duty of the court to have entered judgment by default, for want of a plea, and to have assessed the damages immediately; no writ of enquiry being necessary, as the damages were liquidated by the instrument sued on.

The other Judges concurring the judgment will be reversed, and th© cause remanded»