Watson v. Walsh & Patterson

Scott, J., delivered the opinion of the Court. The appellant was sued by the appellees in the St. Louis Circuit Court in assumpsit. The declaration contained two counts, one on a promissory note and one on a count for money had and received. The writ was served on the appellant personally, more than twenty days before the beginning of the return term. There was no profert made in the declaration of the note sued on, in consequence of which there was a demurrer toTthe count on the note, which was sustained. An issue was made up on the second count, and the appellee applied for a continuance, which was refused, and judgment was rendered against him at the return term of the writ. The application for the continuance was made on the 2nd December, 1845, and the trial, which was by submission, did not take place until the 23rd March following. The 7th section of the act regulating the proceeding by petition in debt enacts, that in all common law actions of debt and actions of assumpsit, founded on bonds, bills or notes, in the Circuit Court, the defendant, if he shall have been personally served with process twenty days before the return day thereof, shall plead to the merits of the action on or before the second day of the term, and that a trial shall be had at such term unless the suit is continued for good cause. The declaration contained two counts, one on a note and one on a common count. As there could be but one final judgment in the cause, and as the appellees joined a cause of action, in which the appellant was entitled to a continuance with the count on the note, it is clear they were not entitled to a trial at the return term. It was not in their power to take from the appellee a right to a delay until the second term of the trial of the cause of action contained in the second count, by joining with it in the declaration a cause of action triable at the first term. The appellant cannot be presumed to know that the same cause of action was stated in both counts; and if even it were so, yet as it was unknown to him on which the appellees would proceed, he was entitled to a continr nance. There was no necessity for an application for a continuance. The cause was continued by operation of law. The court properly overruled [456] the motion. As there was no objection made to the subsequent proceed - ings on account of their irregularity, and as the error of the court below was not sought to be corrected by motion, the other Judges concurring, the judgment will be affirmed,