St. Joseph Fire & Marine Insurance v. Harlan

Norton, J. This case is here on appeal of defendants from a judgment of the Andrew circuit court, and as there is no bill of exceptions in the case, we are confined to an examination of the record proper for discovery of error. The record proper, which consists of the petition, summons, subsequent proceedings, verdict and judgment, discloses no error. The petition states a cause of action which supports the judgment rendered. It is insisted, however, by counsel, that as the replication of plaintiff does not deny one of the defenses set up in the answer alleging facts sufficient to defeat a recovery, the judgment should, for that reason, be reversed. Supposing it to be true, as claimed, that the replication does not fully traverse the allegations of the answer, yet as the record shows the parties went to trial without defendants’ excepting to the sufiicieney of the replication, without making any motion to non pros the plaintiff, and without asking that the allegations of the answer,which were undenied, should be taken as confessed, it is too late after verdict and judgment to make the objection, and for the first time to urge it here. Howell v. Reynolds County, 51 Mo. 154; Henslee v. Cannefax, 49 Mo. 290. Judgment affirmed, in which all the judges concur.