Public-domain · open source
OpenJurist

35 Mo. 90

Sœding v. Bartlett

Supreme Court of Missouri

Decided March 15, 1864

Supreme Court of Missouri · decided 1864-03-15

Louis Law Commissioner’s Court. Action on mechanics’ lien, tried by the court sitting as a jury. Petition alleged that plaintiffs were partners ; that the defendant Bartlett was the contractor of the other defendants, Win.

Key passage — most relied on by later courts

““There was no issue in the case making any proof on the subject of the notice necessary; the allegation of the petition, that the respondents had given such notice, was not denied by the answer, and it therefore stood confessed. The answer denied ‘any knowledge or information sufficient to form a belief whether or not a notice was served on them as required by law.’ This averment proposed to make an issue as to the lawfulness merely of the notice, and not as to the fact of notice The fact being admitted, there was no issue for the jury; and, as a consequence, no testimony needed.””

quoted by 1 later decision, including Shoshoni Lumber Co. v. Fidelity & Deposit Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1864-03-15

How this case has been cited

Cited by 4 later decisions — most recently April 1972

4 state decisions

10186418701880189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

DRYDEN, Judge,

¶1delivered the opinion of the court.

¶2Upon what principle the defendant White could, in the progress of the trial, demand that his name be stricken out as an unnecessary party, is not apparent. I know no practice to sustain any such proceeding. If he considered himself an unnecessary party to a complete determination of the action, he ought to have tested the question at the proper time by demurrer to the petition; but, failing to adopt that course, he must need await the verdict of the jury.

¶3The instructions asked by the appellants, which sought to question the sufficiency of the notice of the respondents to the owners of the property of their intention to claim a lien, were properly refused. There was no issue in the case making any proof on the subject of the notice necessary; the allegation of the petition, that the respondents had given such *95notice, was not denied by the answer, and it therefore stood confessed. The answer denied “ any knowledge or information sufficient to form a belief whether or not a notice was served on them as required by law. This averment proposed to make an issue as to the lawfulness merely of the notice, and not as to the fact of notice. The fact being admitted, there was no issue for the jury; and, as a consequence, no testimony needed.

¶4There was no evidence in the case tending to show Hanson connected with, or interested in, the contract between the owners and Bartlett the contractor ; and the instructions asked by the appellants as to the effect of the supposed connection, were therefore, likewise, properly refused.

¶5Let the judgment be affirmed; the other judges concurring.

/35/mo/90 · .json · Public domain