Lemon Hosea & Co. v. Cross

60 Mo. 173

Opinion

Sherwood, Judge,

delivered the opinion of the court. '

During the pendency of this cause in the Circuit Court, the promissory note, sued on before the justice of the peace, was lost, and because of the refusal of the plaintiffs to file an affidavit of such loss, in the manner required by § 10, p. 814, Wagn. Stat., the court dismissed their suit.

An affidavit, alleging loss of the instrument sued on, is one of the requirements of the section referred to, where suit is instituted before a justice of the peace; but it by no means follows that an affidavit is necessary, if the loss occurs after the case goes by appeal to the Circuit- Court. (German Savings Bank vs. Kerlin, 53 Mo., 382.)

Reversed and remanded;

all the judges concur.