Bohn v. Lucks

• Decision Date: 04 June 1912
• Parties: BOHN v. LUCKS.
• Court: Missouri Court of Appeals

147 S.W. 1112

BOHN v. LUCKS.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. APPEAL AND ERROR (§ 549) — PRESERVATION OF EXCEPTIONS — RULINGS.

The overruling of a motion to set aside a default presents a matter of exception only, which must be preserved and exemplified on appeal by a proper bill of exceptions.

2. APPEAL AND ERROR (§ 281) — MOTION — NECESSITY.

All matters of exception occurring at the trial must be brought to the attention of the trial court in a motion for new trial, to afford it an opportunity to revise the same, or they will be considered waived.

3. APPEAL AND ERROR (§ 549) — EXCEPTIONS — PRESERVATION — NEW TRIAL.

A motion for new trial may only be preserved on appeal by incorporating it, together with an exception to the overruling thereof, in a bill of exceptions filed after final judgment; and the motion thus filed and exemplified operates to render reviewable every exception therein referred to which has been properly preserved by term bills or in the final bill.

4. EXCEPTIONS, BILL OF (§ 24) — EXCEPTIONS — PRESERVATION — NEW TRIAL.

Rev. St. 1909, §§ 2028, 2029, authorizing the taking of exceptions at any time, contemplate that exceptions taken during the term prior to the term at which final judgment is entered shall be preserved by a term bill of exceptions, and all prior term bills of exceptions must be assembled in one general bill of exceptions, which incorporates the motion for new trial or other appropriate motion for review after final judgment; and the overruling of a motion to open a default preserved by a term bill of exceptions will not be considered on appeal from a final judgment rendered at a subsequent term, unless such bill of exceptions is brought within the purview of the motion for new trial by incorporating it into a general bill of exceptions, preserving the motion for new trial after final judgment and an exception to the overruling of the same.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Theodore W. C. Bohn against Peter Jacob Lucks. From a judgment for plaintiff, defendant appeals. Affirmed.

Buder & Buder, of St. Louis, for appellant. George W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of a breach of contract. The finding and judgment were for plaintiff, and defendant prosecutes the appeal.

The question for consideration relates to our right to review the subject-matter, in the absence of a motion for new trial and bill of exceptions, made after final judgment. The only error assigned here pertains to the action of the trial court in declining to set aside a default theretofore entered during the same term against defendant. An exception was duly preserved to the ruling of the court, in refusing to set the default aside, by a term bill of exceptions, and is thus exemplified here. But the appeal was not perfected until a subsequent term of the court at which an inquiry of damages was had and final judgment given. It is from this final judgment the appeal is prosecuted, but without a bill of exceptions made thereafter preserving and presenting a motion for a new trial.

It appears plaintiff instituted his suit in due time for the December, 1907, term of the circuit court, and that the sheriff served the original writ of summons, together with a copy of the petition attached thereto, upon defendant in season for such December term. The December term convened on Monday, December 2, 1907, and under the statute and rule of the court it was defendant's duty to answer the petition on or before December 5th. No appearance in response to the summons was made by defendant, and thereafter, on December 12th, the court entered a default against him. Several days later defendant appeared by attorney, on December 21st, and filed his motion to set aside the default, alleging that, though he had read the petition, he omitted to notice the summons attached thereto, and was therefore not advised as to the time when he should appear. Subsequently, during the same term, defendant filed supplementary motions and set out other and additional facts tending to show that he had a meritorious defense to the action. The motion to set aside the default and the several supplements thereto, filed during the December term, were passed or continued until the following February, 1908, term of the court. During the February term, the motion to set aside the default was considered by the court and overruled. To this ruling an exception was duly saved by defendant and preserved by a term bill of exceptions during the February term, 1908. But nothing further was done in the case for about two years thereafter. It appears to have been continued from term to term until, on April 13, 1910, an inquiry of damages was had by a jury. On this inquiry the verdict was for plaintiff, and final judgment was entered thereon in the amount of $800 against defendant. Thereafter, during the same term, this appeal was prosecuted from that judgment. It is urged by the appellant that the court abused its discretion in declining to set aside the default and in overruling his motion to that effect at the February term, 1908. But plaintiff insists the question is not before us for review, for the reason that no bill of exceptions whatever was made up and filed...