McHoney v. German Insurance

37 Mo. App. 218

Opinions

Ellison, J.

This action is brought by petition founded upon an instrument of writing charged to have been executed by defendant. The instrument is not filed with the petition, nor is it alleged therein to be lost or destroyed. Defendant’s motion to dismiss the case, based on such ground, was overruled. The instrument sued upon is a policy of fire insurance charged to have been executed by defendant. ■ The motion should have been sustained. Hannibal & St. Joseph Ry. Co. v. Knudson, 62 Mo. 569; Rothwell v. Morgan, 37 Mo. 107; Dyer v. Murdock, 38 Mo. 224; Peake v. Bell, 65 Mo. 224, and cases cited. Plaintiff seeks to avoid his failure to file the policy on the grounds which he shows aliunde the petition, viz., there was a separate written application for insurance,' made and signed by him before the policy was issued, which, by the terms of the policy, became a part thereof, and that therefore the instrument sued upon was, in effect, executed by both parties and not subject, under adjudications in this state, to the provisions of section 3560, Revised Statutes, 1879, requiring instruments “executed by the other party ” to be filed. The difficulty with this contention is that these matters are not shown by the petition, if, indeed, they are not contradicted by it.

The petition refers to nothing but the policy, which it charges to have been executed by defendant.

It is upon the petition and the instrument filed with it, or if not filed, to the reasons for the omission, that the court must look to in passing' upon the motion which attacks the case for this defect.

The judgment is therefore reversed and the cause dismissed.

All concur.