State ex rel. Phillips v. Rush

This is a suit on an executor’s bond. The only allegation in the petition as to the execution of the bond, is that the defendants “ by their certain writing obligatory, * * sealed with their seals, became bound unto the State of Missouri in the penal sum of $30,000, for the just payment of which they bound themselves, their heirs,” etc. The circuit court sustained a demurrer to the petition for the reason that the foregoing allegation did not amount to an averment that the defend*587ants, or either of them, executed the writing obligatory therein mentioned; and the plaintiff declining to amend, •final judgment was rendered on said demurrer for the defendants. The- statement that the defendants- became bound unto the State of Missouri in the sum of $30,000 by their certain t writing obligatory, standing alope, might be regarded as a conclusion of law, and, therefore, insufficient; out the accompanying allegation that the defendants bound themselves to pay said sum, is.clearly the averment of an issuable fact. Taking the allegation as a whole, it is tantamount to an averment thát the défendants by their certain writing obligatory, sealed with their seals, bound themselves to pay to the State of Missouri the sum of $30,000, which we think is a sufficient averment of the execution of the bond by the defendants. Bliss on Code Plead., §§ 144, 210, 213.

The judgment will, therefore, be reversed and the cause remanded.