Warder, Bushnell & Glessner Co. v. Libby
Missouri Court of Appeals
Appeal from Pike Circuit Court. — How. H. H. Eby, Judge. (1) The trial court should have sustained the defendant’s motion to dismiss the cause for the reasons stated therein, because: (a) There should have been a sworn statement filed as the cause of action, alleging the loss of the notes and stating their substance. R. S. 1899, sec. 3854; Wise v. Loring, 54 Mo. App. 258. This was a jurisdictional requirement.
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Appeal from Pike Circuit Court. — How. H. H. Eby, Judge. (1) The trial court should have sustained the defendant’s motion to dismiss the cause for the reasons stated therein, because: (a) There should have been a sworn statement filed as the cause of action, alleging the loss of the notes and stating their substance. R. S. 1899, sec. 3854; Wise v. Loring, 54 Mo. App. 258. This was a jurisdictional requirement. Summons could not be issued until it was done, and that fact must appear from the justice’s transcript or' the sworn statement. R. S. 1899, sec. 3852 and 3854; Rechnitzer v. Candy Co.,…
1Opinion of the CourtReyburn, J.
(after stating the facts as above.) — 1. Appellant urges that the motion to dismiss was erroneously overruled, as there should have been a sworn statement filed as the cause of action, alleging the loss of the notes and stating their substance. Section 3854, R. S. 1899, requires that if the instrument in writing, upon which the action is founded (which by the preceding section is required to be filed with the justice), is alleged to be lost or destroyed, it shall be sufficient for the plaintiff to file with the justice, the affidavit of himself or some other credible person, stating such loss…
2Cases cited4 opinions
- Eans' Adm'r v. Exchange BankSupreme Court of Missouri · 1883
- Macey v. StarkSupreme Court of Missouri · 1893
- St. Louis, Cape Girardeau & Fort Smith Railway Co. v. HolladaySupreme Court of Missouri · 1895
- Barrows v. MillionMissouri Court of Appeals · 1890
3Cited by4 opinions
- Hays v. DowMissouri Court of Appeals · 1942
- Hogan v. KaiserMissouri Court of Appeals · 1905
- Leigthy v. MurrMissouri Court of Appeals · 1916
- K & D Construction Co. v. D. L. W. Construction Co.Missouri Court of Appeals · 1972