35 Mo. 374 (Mo. 1865), Chambers v. Carthel

Citation:35 Mo. 374
Opinion Judge:BATES, Judge
Party Name:THOMAS W. CHAMBERS, Defendant in Error, v. JOSEPH M. CARTHEL and WILLIAM C. BLAKELY, Plaintiffs in Error.
Attorney:T. A. Sherwood, for plaintiff in error.
Judge Panel:Judges Bay and Dryden concur.
Court:Supreme Court of Missouri
 
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Page 374

35 Mo. 374 (Mo. 1865)

THOMAS W. CHAMBERS, Defendant in Error,

v.

JOSEPH M. CARTHEL and WILLIAM C. BLAKELY, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1865

Error to Greene Circuit Court.

T. A. Sherwood, for plaintiff in error.

The judgment was irregular, and could be for that irregularity set aside on motion at any time within three years, (R. C. 1855, p. 1290, § 26,) and the time limited had not expired. A judgment is irregular whenever given for a greater amount than that shown by the petition and accompanying papers to be due. Such judgment is erroneous in matter of fact, and can be corrected by writ of error coram nobis; and whenever such a writ lies, a motion under our statute will accomplish the same object. (2 Tidd 1136; Stacker v. Cooper Circuit Court, 25 Mo. 401; Maupin v. Triplett, 5 Mo. 422; Cox v. U. S. 6 Pet. 171.)

There was no necessity even that a motion should have been made in the court below, in order to take advantage of this irregularity of the judgment by writ of error. West, assignee of Maloy, v. Miles, 9 Mo. 167, and cases therein cited; Powell v. Gott, 13 Mo. 458.)

OPINION

BATES, Judge

The defendant suffered judgment to go against him by default, and at a subsequent term moved the court to set aside the judgment for the following reasons:

1. sad judgment is irregular in this, that it is rendered for a greater sum than plaintiff is entitled to by the instrument on which he brings suit.

2. Said judgment bears ten per cent. interest, and the said instrument sued on draws no interest.

3. Said judgment is rendered for damages, and plaintiff is entitled to none.

The motion was overruled and the defendant brings up the case.

The Circuit Court did not err in overruling the motion. Without adverting to other...

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