Stacker v. Cooper Circuit Court

Decision Date31 July 1857
Citation25 Mo. 401
PartiesSTACKER v. COOPER CIRCUIT COURT.
CourtMissouri Supreme Court

1. Where a judgment is regularly rendered, it cannot be set aside at a subsequent term of the court; where however it is irregular, the court may at a subsequent term correct the irregularity.

2. After an order of reference in a cause is made, and while it is still standing unexecuted and in force, final judgment in the cause should not be rendered; if so rendered, the court may, at a subsequent term, recall the same and set it aside.

Application for a mandamus. In his application to the Supreme Court for a mandamus, the applicant, George Stacker, sets forth that he instituted a suit upon an account before a justice of the peace against one David Andrews; that he recovered judgment against the defendant before the justice; that the defendant appealed to the Circuit Court of Cooper county; that at the March term, 1855, of said Circuit Court, the cause was referred, by consent of parties, to Isaac Lionberger, and was continued for his report until the next term of said court; that said Lionberger did not make any report at the next September term of said court in accordance with said order of reference; that at the March term, 1856, the judgment of the justice of the peace was, on motion of plaintiff, affirmed, because the appellant (Andrews) had failed to prosecute his appeal according to law, and judgment was rendered by the Circuit Court against said Andrews and Jos. L. Stephens, his security in the appeal bond; that afterwards, at the September term, 1856, the said judgment was, on motion of Andrews, set aside, and an execution issued thereon quashed; that at the March term, 1857, of said Circuit Court, 1857, the plaintiff again moved the court to affirm the judgment of the justice of the peace for the reason that the appellant had failed to prosecute his appeal according to law, which motion was overruled; that the court also overruled a motion for an order to issue an execution on the judgment rendered at the March term, 1855, and refused to order an execution to issue on said judgment. The petitioner prayed that a writ of mandamus might issue from the Supreme Court, directed to the Circuit Court of Cooper county, commanding said court to issue an execution on the said judgment rendered in favor of plaintiff against the said Andrews at the March term, 1856, of said Cooper Circuit Court, or to show cause why the same has not been done by said court, and for such other and further relief, etc.

Douglass, for petitioner.

I. Mandamus is the proper remedy. (Boyce v. Smith, 16 Mo. 317.)

II. The appellant, David Andrews, having failed to prosecute his appeal according to law, it was the duty of the

Circuit Court to affirm the judgment of the justice of the peace. (R. C. 1845, p. 244, §16; Martin v. White, 11 Mo. 214; Starr v. Stewart, 18 Mo. 410.) The judgment of the Circuit Court, affirming the judgment of the justice of the peace, was a final judgment rendered at the March term, 1856, and could not be set aside at the subsequent September term. (Hill v. City of St. Louis, 20 Mo. 584; Maids v. Watson, 13 Mo. 544.) If the court, at a subsequent term, had power to set aside the judgment rendered at a former term, it could only be done upon the ground that the judgment was irregular. (R. C. 1845, p. 831, §8.) The alleged irregularity in this case is that the...

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42 cases
  • Cross v. Gould
    • United States
    • Missouri Court of Appeals
    • May 12, 1908
    ...the court set this judgment of affirmance aside as for irregularity, and this action was affirmed by the Supreme Court. Stacker v. Cooper Circuit Court, 25 Mo. 401. It will be noted in all of these cases the irregularity appeared on the face of the proceeding, and was discoverable without e......
  • Campbell v. Spotts
    • United States
    • Missouri Supreme Court
    • December 20, 1932
    ...Phillipson, 1 Mo. 188; Hyde v. Curling, 10 Mo. l. c. 363; Harrison v. State, 10 Mo. l. c. 689; State v. Clark, 18 Mo. 432; Stacker v. Cooper Circuit Court, 25 Mo. 401; Robertson v. Neal, 60 Mo. 579; Davison Davison, 207 Mo. 702.] Such amendments as are here authorized, are within the purvie......
  • Cross v. Gould
    • United States
    • Missouri Court of Appeals
    • May 12, 1908
    ... ... 585 CROSS et al., Respondents, v. GOULD et al., Appellants Court of Appeals of Missouri, St. Louis May 12, 1908 ... [110 S.W. 673] ...           Appeal ... from Shelby Circuit Court.--Hon. Nat. M. Shelton, Judge ...          REVERSED ... affirmed by the Supreme Court. [ Stacker v. Cooper Circuit ... Court, 25 Mo. 401.] It will be noted in all of ... ...
  • Jeude v. Sims
    • United States
    • Missouri Supreme Court
    • May 4, 1914
    ...that would be an irregularity under the statute. Taking judgment after an order of reference would be an irregularity. [Stacker v. Circuit Court, 25 Mo. 401.] judgment which the record shows was taken prematurely is such irregularity. [Branstetter v. Rives, 34 Mo. 318.] A judgment on a revi......
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