City of St. Louis v. Boyce

• Decision Date: 18 June 1895
• Citation: 31 S.W. 594,130 Mo. 572
• Parties: CITY OF ST. LOUIS v. BOYCE.
• Court: Missouri Supreme Court

31 S.W. 594

130 Mo. 572

CITY OF ST. LOUIS v. BOYCE.

Supreme Court of Missouri, Division No. 2.

June 18, 1895.

REVIEW ON APPEAL — MOTION FOR NEW TRIAL.

Rev. St. 1889, § 2243, provides that a motion for a new trial shall be made four days after the trial. Held that, though a motion for new trial was made within four days after exceptions to a commissioners' report condemning certain land were overruled, no matters of exception could be reviewed on appeal, no motion having been made after entry of final judgment.

Appeal from St. Louis circuit court; John A. Harrison, Judge.

Proceeding by the city of St. Louis against Mary E. Boyce to condemn certain property for a street. From a judgment for plaintiff, defendant appeals. Affirmed.

James P. Maginn, for appellant. W. C. Marshall, for respondent.

SHERWOOD, J.

The city instituted this proceeding to condemn certain property in order to open Allen avenue, under Ordinance 15,667. The commissioners brought in their report, and defendant filed exceptions thereto. These exceptions were overruled on January 4, 1893, during the December term. Within four days thereafter, defendant filed her motion for a new trial. On the next term in February of that year, to wit, on March 8th, the motion for a new trial was overruled, and defendant immediately filed her bill of exceptions, and at the next term, to wit, on April 15th, judgment was rendered against the defendant, from which she took, during the same term, June 3d, her now pending appeal. The point is now made here that no motion for a new trial was filed as required by law, and that the motion, filed when it was, was "a wholly nugatory act, inasmuch as the action of the trial court on the exceptions was not a final judgment." Our statute (section 2243, Rev. St. 1889) requires that a motion for a new trial shall be made within four days after the trial. We have repeatedly held that this statute is mandatory, and that it must affirmatively appear that the motion was filed within the time required by law. Welsh v. City of St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523; Long v. Towl, 41 Mo. 398; Richmond v. Wardlaw, 36 Mo. 313. Here no motion for a new trial was filed after the rendition of the judgment, which must be regarded as in the nature of the coming in of a verdict, or as the finding by the court. It was well enough for defendant to tender her bill of exceptions at the February term, and have the same signed and filed when her exceptions to the...