Andrew Cnty. v. Owens
| Decision Date | 31 August 1870 |
| Citation | 46 Mo. 386 |
| Parties | ANDREW COUNTY, Defendant in Error, v. AMOS F. OWENS, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Fifth District Court.
Kelly, Davis & Giddings, for plaintiff in error.
I. It has always been conceded that in cases like the one at bar an appeal would lie; and the only question has been whether the appeal operated as a certiorari or writ of error, or whether the case could be tried de novo.(County of Boone v. Corlew, 3 Mo. 10-12; County of St. Louis v. Sparks, 11 Mo. 201; Lewis v. Nicholls, 26 Mo. 278; Lacy v. Williams, 27 Mo. 280; County of St. Louis v. Lind et al., 42 Mo. 348; Foster et al. v. Dunklin, 44 Mo. 216.) The Circuit Court did not try this case either upon the record or de novo, but dismissed the appeal without a hearing in either mode. His failure to appear on the first day, or before the judgment, might preclude him from setting up a defense in the County Court of extraneous matter--matters not apparent on the face of the record--but it could not preclude him from appealing nor from resisting the correctness of the decree or judgment for error, apparent on the face of the claim or record.
II. It was not necessary, in this case, for plaintiff in error to move or appear before the judgment was rendered in order to entitle him to an appeal; nor is it necessary to move to set aside a judgment by default in the County Court at all, in order to an appeal.
Strong & Chandler, for defendant in error.
There is but one question presented by this record for our consideration, and that is the action of the Circuit Court in dismissing the appeal from the County Court. Owens, it seems, was formerly the collector of the revenue of Andrew county; and at the May term, 1869, of the County Court of that county, the court alleged that he had failed to make his settlements at stated terms, as the law required; and they proceeded to adjust his accounts, and found a balance due the county. An order was then entered of record commanding him to pay the amount so found due, to the county treasurer within ten days after a copy of the order should be served upon him. This he failed to do, and at the next succeeding (August) term the County Court proceeded to render judgment against him for the sum found due on settlement, together with the statutory penalty. At the October adjourned term, it being a continuation of the regular August term, Owens appeared and moved the court to set aside the judgment and open up the settlement for certain reasons alleged in his motion, which being overruled, he appealed to the Circuit Court. In the Circuit Court the county, by its attorney, appeared and moved to dismiss the appeal because the defendant did not, on the first day of the next term of the County Court after the adjustment of his accounts, show cause why judgment should not be rendered against him, and because no appeal was allowed by law in this case. The Circuit Court sustained the motion; and an affirmance being had in the District Court, Owens sued out his writ of error. The proceedings were had under the statutes prescribing the duties of collectors and other officers who are chargeable with moneys belonging to any county. (
The nineteenth section makes it the duty of the officers named to settle with the County Court at each stated...
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Barney v. Suggs
...in the absence of a motion to set aside or vacate." Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). See also Andrew County v. Owens, 46 Mo. 386, 388 (1870); Blackmore v. Blackmore, 639 S.W.2d 268, 269 (Mo.App.1982). While there is a lack of unanimity on the issue, this is the rule in ......
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Moore v. Bailey
...in the case. If the treasurer ever had a right of appeal, it is decided that he had lost it; and, as appears by the report of the case in 46 Mo. 386, the judgment was rendered long before the passage of the act of 1870. We are not aware that the question as to the right to sue out a writ of......
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Blackmore v. Blackmore, 43770
...rule is that an appeal may not be taken from a default judgment unless there was a prior motion in the trial court. See Andrew County v. Owens, 46 Mo. 386 (1870); Industrial Commission v. Parise, 13 Ariz.App. 522, 478 P.2d 137 (1970); 4 C.J.S. Appeal and Error § 155a. The reason for the rul......
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Owens v. Andrew Cnty. Court
...different persons. There is in them not only no conflict, but there is hardly a shadow of similarity in their objects. This court, in 46 Mo. 386, decides that this proceeding was authorized under the law. BLISS, Judge, delivered the opinion of the court. Contrary to the usual practice, we a......