Howell v. Reynolds County

Adams, Judge, delivered the opinion of the court. This was an action on several county warrants drawn on funds appropriated to county expenditures. The answer denied that the warrants were for any valuable consideration, and set up that they were obtained by false and fraudulent representations. [156] The record does not show that there -was any replication to the answer, but the case was submitted to the court and tried as though there had been a replication, and a verdict and judgment was rendered for the plaintiff for the amount of the yvarrants. There was no motion in arrest or for a new trial, and no bill of exceptions. The case is here simply upon the record. The suit was originally brought in the Reynolds Circuit Court and taken by a change of venue to "Wayne Circuit Court. The petition was defective in not stating that there were funds in the treasury out of which the warrants might have been paid, and that the treasurer refused to'pay them out of such funds. But after a verdict has been rendered, such omissions are not allowed to stay or impair the judgment, but will be supplied by the court in favor of the verdict. (See § 19, 2 W. S., 1036.) If the verdict had been against the plaintiff and he was here trying to set it aside, it might be held that on account of such omissions the verdict was for the right party, although errors in other respects might have been committed. The omissions referred to are allowed to be supplied in support of the finding and judgment. In regard to the want of a replication, the proper time to have taken advantage of it was by a motion to non pros the plaintiff, or upon the trial to have asked that the allegations might be taken as true. (See 2 W. S., 1053, § 6; 2 W. S., 1019, § 36.) If however such motions had been made, the court in furtherance of justice would have permitted a replication to be filed instanter. After trial and verdict as though the replication was in, it is too late to make the objection, nor can such objection be made for the first time in this court to impair a verdict and judgment. Smith and Wife vs. City of Joseph, 45 Mo., 449, Henslee vs. Cannefax, 49 Mo., 295. I have examined the record and find no sufficient error to warrant us in interfering with the judgment. Judgment affirmed. Judge Wagner concurs. Judge Bliss absent.