Jones v. Snedecor , 3 Mo. 390 ( 1834 )

Tompkins, J.,

delivered the opinion of the Court.

This was an action commenced against the appellants in the Circuit Court of Washington county, by petition and summons, on a bond given to the plaintiffs below, naming them Parker Snedecor, adm’r, and Jane Peery, adm’x, of Andrew Peery, dec’d. The defendants pleaded,

First. Payment with a notice of set-olf.

Second. That the wife of Myers Jones, one of the defendants, was a distributee of tiie estate of Andrew Peery, the plaintiffs’ intestate.

Third. A set-off.

Fourth. That the plaintiffs were not administrators, &c.

To the first plea a replication was filed and issue taken; to the second there was a demurrer; and a replication and issue taken on. the third; and issue was taken on the fourth plea. The demurrer to the second plea was sustained. The matters in issue on the three other pleas were submitted to the Court, neither party requiring a jury. The Court found the defendants indebted to the plaintiffs in the sum of two hundred and twenty-one dollars, the debt in the petition mentioned, and assessed their damages to $23 36.

Wo issue was found on the fourth plea, nor on the third. It will be observed that the defendants below, appellants here,gave their bond to the plaintiffs as administrator and administratrix, and even had it been given to them as administrators of the intestate, they need not have sued in their representative character ; and the appellants have in the bond admitted the plaintiffs to be administrators.

The issue joined then on the fourth plea is immaterial, and it is no error that such issue is not found. So much cannot be said of the issue joined on the third plea, which is a plea of set-off; it is certainly error that there is no finding on that issue. The judgment of the Circuit Court is therefore reversed, and the cause remanded.