Phillips v. Russell's Administrator

24 Mo. 527

• Court: Supreme Court of Missouri
• Decided: March 15, 1857
• Status: Published

Opinion

Scott, Judge,

delivered tbe opinion of tbe court.

We see no ground for dismissing this cause in the court below. If it was dismissed because tbe notice was to tbe first day of tbe term, and tbe cause was not taken up until tbe next day, tbe order of dismissal was erroneous. It appears that both parties were present when the cause was heard in the county court, and there was a judgment for tbe plaintiff. Tbe cause not being presented tbe first day, it would stand continued from day to day until it was beard. It was in tbe power of the defendant, by an application to tbe court, to have relieved himself of a burthen of attending during tbe whole term. The court might have fixed a day and compelled the plaintiff to reasonable terms, so as to prevent tbe unnecessary harassing of administrators. Tbe statute only requires a notice to the next term of tbe county court; so, by tbe notice given by the plaintiff', tbe defendant was not in a worse condition than if tbe notice bad conformed to tbe words of tbe statute ; for if tbe notice bad been to tbe next term of tbe county court, it will not be maintained that tbe plaintiff might not on any day of tbe term have presented his demand.

We consider tbe notice of tbe demand sufficient. It contained a copy of tbe demand. Section 15 of article 8 of the act concerning administration provides that the county court shall hear and determine all demands in a summary way without tbe form of pleading. Thé nature of tbe claim was described in such a way as enabled tbe defendant to prepare a defence against it.

Judge Ryland concurring,

tbe judgment will be reversed and tbe cause remanded;

Judge Leonard absent.