Musgrove v. Mott
Supreme Court of Missouri
Appeal from Clarice Circuit Court. — Hon. B. E. Turner, Judge. (1) The court erred in overruling defendant’s motion to strike out plaintiff’s amended affidavit. A party asking to amend must have someting to amend. Brosius v. Strode, 46 Mo. 221; Bray v. McClurg, 55 Mo. 128 ; Oioens v. Johns, 59 Mo. 89. (2) The court erred in overruling defendant’smotion to dismiss. The note was not due until after the rendition of the judgment.
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Appeal from Clarice Circuit Court. — Hon. B. E. Turner, Judge. (1) The court erred in overruling defendant’s motion to strike out plaintiff’s amended affidavit. A party asking to amend must have someting to amend. Brosius v. Strode, 46 Mo. 221; Bray v. McClurg, 55 Mo. 128 ; Oioens v. Johns, 59 Mo. 89. (2) The court erred in overruling defendant’smotion to dismiss. The note was not due until after the rendition of the judgment. R. S., sec. 399 ; Hamilton v. McLelland, 33 Mo. 315. (3) There was no trial or finding on the plea in abatement in the justice’s court and the suit should have been…
1Opinion of the Court
Black, J. —
This suit was commenced before a justice of the peace by attachment on a note not then due. The justice’s record does not show that defendant put in a verbal plea in abatement to the affidavit for attachment as contemplated by section 471, Revised Statutes, but the parties went to trial, and there was judgment for the plaintiff, though the note was not yet due. The defendant appealed to the April term, 1883, of the circuit court, and at that term filed his plea in abatement. Subsequently, and at the same term, plaintiff filed an amended affidavit for attachment, and thereupon the…
2Cases cited3 opinions
- Boulware v. Chicago & Alton RailroadSupreme Court of Missouri · 1883
- Starr v. StewartSupreme Court of Missouri · 1853
- McDowell v. StrongSupreme Court of Missouri · 1865
3Cited by11 opinions
- Burnett v. McClueySupreme Court of Missouri · 1887
- Avery v. GoodSupreme Court of Missouri · 1893
- Brown v. ShockMissouri Court of Appeals · 1887
- Hull v. BeardMissouri Court of Appeals · 1899
- State Ex Rel. Costco Wholesale Corp. v. HartenbachMissouri Court of Appeals · 2008
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