Opinion
No. 28480.
November 18, 1952.
APPEAL FROM THE CIRCUIT COURT, JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Thurman Blackwell, Hillsboro, for appellants.
Ennis Saunders, Festus, for respondent.
This is an action upon a promissory note, wherein plaintiff (respondent) obtained a judgment against the three defendants (appellants) in the sum of $898.50. The only two assignments of error presented for our consideration on defendants' appeal relate to the alleged insufficiency of the petition and to alleged error in overruling defendants' motion for a directed verdict, based on their claim of insufficiency of evidence adduced by plaintiff.
As befits a suit upon a promissory note, plaintiff's petition was brief, alleging that on September 9, 1940, the defendants executed their promissory note, payable to one Mrs. Anna Malloy or order, one year after date, in the sum of $539.50, for value received; that before maturity said payee indorsed and delivered said note to plaintiff for value, whereby plaintiff became owner thereof and was entitled to payment; that plaintiff still owns said note; that same is long past due and that no part thereof had been paid. A copy of the note was filed therewith. The prayer sought judgment for $539.50, plus interest.
It is defendants' contention now that this petition is deficient for failure to contain allegations showing that venue was properly laid in the Circuit Court of Jefferson County, under provisions of Section 508.010 RSMo 1949, V.A.M.S., governing venue of personal actions.
However, defendants did not make any complaint of improper venue in the court below. At no time did they file a motion raising this objection, as authorized by Section 509.290 RSMo 1949, V.A.M.S. Instead their first pleading was a motion to dismiss the petition for failure "to state a claim upon which relief can be granted", under Section 509.300 RSMo 1949, V.A.M.S., which motion was overruled.
Objection to venue, unlike jurisdiction of the court, can be waived by a party who might be entitled to assert it. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308, loc. cit. 318. Defendants can submit themselves to the jurisdiction of a court (which has general jurisdiction of the subject) matter) by any act that would constitute a general appearance. Lieffring v. Birt, Mo.App., 154 S.W.2d 597. The last-cited case also specifically holds that the filing of a demurrer (to which the present-day motion to dismiss is equivalent) is a general entry of appearance. See also Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92,94.
Section 509.050 RSMo 1949, V.A.M.S., prescribes the contents of a petition under our present civil procedure and does not require a statement of facts relative to venue, but only a "short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment * * *." If the venue is improper, the defendant must bring such fact to light, before trial, and, indeed, before entering a general appearance; otherwise he has waived any possible objection. Section 509.340 RSMo 1949, V.A.M.S.
Accordingly, we hold that if defendants had any valid objection available to them relative to the selection by plaintiff of Jefferson County as the venue of this action (which we do not concede), yet such objection was not properly presented in the trial court, and defendants have waived the point.
Coming now to the alleged insufficiency of the evidence, plaintiff testified herein that he is the present holder of the note sued on; that he had purchased the note from the payee, Mrs. Malloy, for the face amount thereof; that she had indorsed and delivered same to him; that nothing had been paid on it and that he had made demand for payment. The only fact developed on cross-examination was that plaintiff's name does not appear on the note, as assignee or otherwise. Neither on direct nor on cross-examination was he asked when the note was indorsed and delivered to him.
Plaintiff offered the note in evidence and also read from depositions of each of the three defendants their respective admissions that each of them had signed the note in suit. Defendants presented no evidence.
It must be noted that the answer of the defendants was a general denial. Under Section 509.240 RSMo 1949, V.A.M.S., the execution of a written instrument is deemed confessed unless specifically denied. By Section 509.410 RSMo 1949, V.A.M.S., the defense of no demand was barred unless expressly set up in the answer. Generally, under Section 509.090 RSMo 1949, V.A.M.S., affirmative defenses, such as failure of consideration, fraud, illegality and payment, must be pleaded specifically, and are not available under a general denial.
The contention now made by defendants on their appeal is that plaintiff, after alleging in his petition that he had purchased the note before maturity, had failed or omitted to prove that particular allegation of fact, and so had failed to establish himself as a "holder in due course," wherefore, it is argued, defendants' motion for a directed verdict should have been sustained. For several reasons, this argument is untenable.
Section 401.045 RSMo 1949, V.A.M.S., same sec., provides: "Except where an endorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue." Thus, the statutory presumption supplies the allegedly missing proof.
By Section 401.047 RSMo 1949, V.A.M.S., an instrument originally negotiable continues to be such until restrictively indorsed or discharged by payment.
Section 401.059 RSMo 1949, V.A.M.S., states that "Every holder is deemed prima facie to be a holder in due course;" subject to certain provisions not relevant here.
These statutory provisions were applied by this court in Wohlschlaeger v. Dorsey, Mo.App., 206 S.W.2d 677, 680. By reason of the statutory presumptions, it was held therein that the burden rested upon defendants to establish their defense of no consideration and their contention that plaintiffs' decedent was not a holder in due course. See also, Crawford v. Johnson, 87 Mo.App. 478, and Highleyman v. McDowell Motor Car Co., 202 Mo.App 221, 216 S.W. 52. In the instant case, defendants offered no evidence to overcome the presumptions.
In the hands of plaintiff, the note was payable to bearer, since Section 401.009 RS Mo 1949, V.A.M.S., provides so, "when the only or last endorsement is an endorsement in blank."
Written assignment naming plaintiff as assignee was unnecessary, after the note became "bearer paper," for such paper is transferable or negotiable by delivery. Simpson v. Van Laningham, 267 Mo. 286, 183 S.W. 324.
It was held in Long v. Long, 141 Mo. 352, 44 S.W. 341, 346, that an indorsement in blank by a payee and the possession of notes by a plaintiff, make a prima facie case of title to the notes in plaintiff.
For the purposes of this case, in the light of defendants' answer, merely a general denial, and of the total absence of defense evidence, the distinctions between "holder" and "holder in due course" are of less significance than in some other cases. Section 401.051 RSMo 1949, V.A.M.S., allows the "holder" of a note to sue thereon. The distinctions arise in connection with the defenses that are available. Section 401.057 RSMo 1949, V.A.M.S., prescribes the rights of a "holder in due course", who is free from defenses available among prior parties, while Section 401.058 RSMo 1949, V.A.M.S., makes other "holders" subject to many defenses. But in this case there is no suggestion of any valid defense, whether to "holder" or "holder in due course".
By reason of all the foregoing matters, the trial court correctly overruled the motion for a directed verdict. The case was tried below by the court without a jury, but we are not asked to review the findings on the facts. We may nevertheless observe that the trial court reached the only proper conclusion on the undisputed evidence, when it rendered its decision and judgment in favor of the plaintiff.
The judgment of the Circuit Court is accordingly affirmed.
BENNICK, P.J., and ANDERSON, J., concur.