Jones v. Shaw

53 Mo. 68

• Court: Supreme Court of Missouri
• Decided: July 15, 1873
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court,

There was no motion filed for a new trial in the court below, nor was there any exception saved to any question of fact. The reason assigned in the motion in arrest, that the petition did not state facts sufficient to constitute a cause of action, in not stating tlie time when the materials were furnished, for which the lien was sought to be enforced, does not appear to be good.

Accompanying the petition was an exhibit giving the dates and. the items; and there is an express averment in the .petition, that the plaintiffs did on a certain day, and within six months after furnishing the materials, file in the office of the Clerk of the Circuit Court, their affidavit and statement, and bill of particulars, for the purpose of enforcing their lien. This was surely sufficient after verdict.

The objection raised, that Shane, who is the only party appealing, was not duly served with process, cannot be inquired into.

The judgment states, that an alias writ was issued as to him, and that it was duly served: the writ nowhere appears in the record, and we are bound to take the recital as true.

The same may be said with reference to waiving a jury. The record states, that a jury was waived, and we must yield faith and credit to the statement.

These are the principal points raised, and none of them have any merit, nor is it pretended that* the party had any just or substantial defense to the plaintiff’s claim.

The judgment is unquestionably right, and should be affirmed. '

Judges Tories and Sherwood concur, Judges Adams and Napton not sitting.