Burrus v. Cook
Supreme Court of Missouri
Transferred from Kansas City Court of -Appeals. The demurrer of defendant Cook should not have been sustained. (1) Because the Statute of Limitations cannot be raised by demurrer. Smith & Kinzer v. Dean, 19' Mo. 63; Cooksey v. Railroad, 17 Mo. App. 141; Maddox v. Duncan, 62 Mo-. App. 474; State to use v. Bird, 22 Mo. 473. It does not appear on the face of the petition that the claim is barred in any event and without any exception.
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Transferred from Kansas City Court of -Appeals. The demurrer of defendant Cook should not have been sustained. (1) Because the Statute of Limitations cannot be raised by demurrer. Smith & Kinzer v. Dean, 19' Mo. 63; Cooksey v. Railroad, 17 Mo. App. 141; Maddox v. Duncan, 62 Mo-. App. 474; State to use v. Bird, 22 Mo. 473. It does not appear on the face of the petition that the claim is barred in any event and without any exception. Defendants’ absence from the State would create one exception, and until defendant pleads the statute, it is unnecessary for plaintiff to plead the exception. Sec.…
1Opinion of the Court
LAMM, J.-
Bowlin held a note against Weese, principal, on which Burrus and Cook were cosureties. In a suit against Weese, Cook and Burrus, Bowlin recovered judgment in 1886 in tbe circuit court of Jackson county. Burrus paid in full in June, 1888. In 1903, Burrus as paying-surety sued Cook in equity to recover one-half bis outlay, making tbe beirs of Bowlin parties defendant — bis bill in three counts, viz. :
The" first count was based on tbe theory that Burrus on paying tbe judgment received a written assignment thereof (now lost); that Cook prior to'judgment bad made himself insolvent by a…
2Cases cited49 opinions
- M'Crea v. PurmortCourt for the Trial of Impeachments and Correction of Errors · 1836
- Faires v. CockerellTexas Supreme Court · 1895
- Godden v. KimmellSupreme Court of the United States · 1879
- Benne v. SchneckoSupreme Court of Missouri · 1889
- Rogers v. BrownSupreme Court of Missouri · 1875
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3Cited by33 opinions
- Branner v. KlaberSupreme Court of Missouri · 1932
- Kithcart v. Metropolitan Life Ins. Co.Court of Appeals for the Eighth Circuit · 1945
- Blitz ex rel. Erickson v. MetzgerSupreme Court of Kansas · 1925
- Long v. MasonSupreme Court of Missouri · 1918
- Kober v. KoberSupreme Court of Missouri · 1929
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