Kearney v. Woodson

4 Mo. 114

Opinion

Opinion-of the court delivered by

McGirk, J.

*

Kearney filed his declaration in the county court, stating that McClelland in his life time made a note to him for $85', that the same is due and unpaid &c.

The declaration makes no profert of the note. The defendants appeared and moved the court to dismiss the plaintifl’’s action on the ground that the court had no jurisdiction of the cause which motion was ■ by the court sustained.

The plaintiff appealed to the circuit court, when the cause was submitted to that court for trial, the defendants moved the court to dismiss the appeal from .the docket, because the plaintiff has misconceived his reme-' dy, which motion was sustained by the court. The appeal was dismissed, to reverse which'the causefis brought here jby a writ or error. To shew that the circuit court did right in dismissing the appeal the defendants in error have pointed out several objections to the plaintiff’s proceeding in the county-court.

They assume it to be the fact that this is an action on a lost bond, and that the statute authorising a suit at law .on a lost bond requires a certain affidavit which is to be filed with the petition or statement of .the plaintiff’s mand, which is to be done some ten days before the court, and that this affidavit is to be made in the court where the cause is to be tried. Whereas the affidavit in this case appears to have been taken before a justice of the peace. It is true the act of the General Assembly passed Jan, 17th 1831, see acts 66, requires the affidavit to be taken before the court competent to try the same. Now as the party must commence his suit by filing his petition in the clerk’s office before the court sets, and the affidavit must then be filed also — there would be no court in most cases to administer the oath to the party; with a view to remedy this inconvenience, the legislature on the 6th Jan. 1833 passed an act authorising the affidavit to be taken before a justice of the peace. See page 89'of the session 1833. This disposes of all objections as to the affidavit.

In suits in the the county court mand against an administrator, profert of a bond cessary.13 n0t No objection to the plff’s statement will be good demurrer would lie — and want of caus^of8s° ecaal demurrer. 1 It seems that whether a copy of count°sued on companied the petition, is matter reeord by bill of exceptions.

The next objection is that no profert is made in the declaration. The answer to this is, that the law which authorises the party to sue in the county court says, the party shall hie a statement of his claim shewing the na-tuie of his demand.

This statement without making profert is'sufficient. The statute of amendments says, the want of profert is 0TRy cause of special demurrer. See revised code 129-30 sect. 10. As there can be no demurrer in the county court we think nothing ought to be taken advantage of as to the goodness of the petition, unless it be such matter as would be good on general demurrer. 1

It is therefore ruled that the want of profert in the statement no ground for dismissing the plaintiff’s suit, R R next objected that the cause was rightly dismissed because the act authorising proceedings^ the county court requires that when a petition is filed there, for a debt demand, R must be accompanied with a copy of the account or note sued on which was not the case here,

There is nothing on the record which shews how that was* Whether the copy of the bond did accom-Pany the petition or not, is a fact inpais, and can only be put on the record by a bill of exceptions. But let this matter be as it may, the record no where shews that this matter was ever decided on by the court below, nor have we any right to suppose it was ever brought to thejview of the court; and the party in his motion says the cause ought to be dismissed because the plaintiff has mistaken his remedy. How the want of filing the bond with the clerk or-the want of sending a copy thereof with the petition can be understood to be a mistake of the remedy, we cannot very well see.

We are of opinion that the circuit [courtjklid wrong in dismissing the plaintiff’s case.

The judgment is reversed, the cause is remanded to be reinstated and tried.

W ash Judge, absent.