Kingston v. Newell
Missouri Court of Appeals
Appeal from Jasper Circuit Court. — No». Howard Gray, Judge. (1) It was necessary, in order to state a cause of action, that the amount of the principal of the mortgage debt be averred in the petition. In this way only, could the court determine the amount (if any) of the penalty for which the defendant was liable. Henry v. Orear, 104 Mo.
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Appeal from Jasper Circuit Court. — No». Howard Gray, Judge. (1) It was necessary, in order to state a cause of action, that the amount of the principal of the mortgage debt be averred in the petition. In this way only, could the court determine the amount (if any) of the penalty for which the defendant was liable. Henry v. Orear, 104 Mo. App. 576. (2) The petition is further fatally defective in not setting out when the alleged payment of the debt was made, nor when the alleged tender or payment of costs of release was made. Scott v. Robards, 67 Mo. 292. (3) The statute inflicting a penalty…
1Opinion of the CourtEllison, J.
The plaintiff recovered of defendant a judgment for ten per cent penalty provided by statute for refusal to enter satisfaction of record of a deed of trust claimed to have been discharged. Objection is made that the petition failed to state a cause of action. The particular objection pointed out by counsel is that it fails to state the amount of the debt secured by the deed of trust; or the amount paid by plaintiff in discharge thereof. The statute (section 4363, Revised Statutes 1899) upon which the action is founded reads as follows: “If any such person, thus receiving satisfaction, do not,…
2Cases cited2 opinions
- Snow v. BassSupreme Court of Missouri · 1903
- Henry v. OrearMissouri Court of Appeals · 1904
3Cited by5 opinions
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- Plymell v. MeadowsMissouri Court of Appeals · 1913