City of St. Louis v. Boyce

• Decision Date: 19 November 1895
• Citation: 31 S.W. 594,130 Mo. 572
• Parties: City of St. Louis v. Boyce, Appellant
• Court: Missouri Supreme Court

31 S.W. 594

130 Mo. 572

City of St. Louis v. Boyce, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from St. Louis City Circuit Court. -- Hon. John A. Harrison Judge.

Affirmed.

James P. Maginn for appellant.

W. C Marshall for respondent.

The exceptions of the defendant Boyce were overruled on January 4, 1893. On January 9 she filed a motion a new trial in respect to the court's action on the exceptions -- a wholly nugatory act, inasmuch as the action of the court on the exceptions was not a final judgment. This so-called motion for new trial was overruled on March 8, 1893, and on the same day the defendant Boyce filed her bill of exceptions in the case, and the court allowed and signed the same. This was at the February term, 1893, of the court. At the March term, 1893, to wit, on the fifteenth day of April, 1893 final judgment was rendered in the cause, from which the defendant Boyce appealed, without having filed a motion for new trial. Before an appeal will lie, an opportunity must first be given the court below, upon motion for new trial, to review its own rulings. Without such motion there is nothing to review in the appellate court. Richmond's Adm'x v. Wardlow, 36 Mo. 313. State v. Marshall, 36 Mo. 400; Long v. Towl, 41 Mo. 398; Moran v. January, 52 Mo. 523; Bank v. Allen, 68 Mo. 474; Welsh v. St. Louis, 73 Mo. 71; State v. Burns, 99 Mo. 471; State v. Day, 100 Mo. 249.

OPINION

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 8, 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 15, judgment was rendered against the defendant, from which she took, during the same term, June 3, 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, Revised Statutes, 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, 73 Mo. 71; Moran v. January, 52 Mo. 523; Long v. Towl, 41 Mo. 398; Richmond's Adm'x 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...