State ex rel. Mueller's Administrator v. Reinhardt

31 Mo. 95

Opinion

Ewing, Judge,

delivered the opinion of the court.

This case, as it is now before us, presents no question not involved in the decision heretofore made; (26 Mo. 483;) for the points now made depend upon the effect of the settlement passed upon in that decision.

After Bidlingmaier filed his answer to the petition, the suit was dismissed as tó him, judgment by default having been taken against the other defendants. It was insisted that by the default the .allegations of the petition, and the amount alleged to.be due on. the settlement therein set forth, were admitted. . The only breach assigned in the bond was the alleged nonpayment óf a balance found on Kehr’s settlement of Mueller’s:'accounts ; and as this settlement was held a nullity by the .former decision- of this court, it could not avail the plaintiff for any purpose. The case stood as though no breach whatever had been assigned, and the default could only entitle the plaintiff to nominal damages.

Judgment affirmed,;

the other judges concurring.