Crossland v. Admire
| Decision Date | 27 November 1893 |
| Parties | CROSSLAND v. ADMIRE. |
| Court | Missouri Supreme Court |
Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.
Action by Washington Crossland against James C. Admire. From an order setting aside a judgment by default, plaintiff appeals. Dismissed.
Peers & Morsey, for appellant. Norton & Avery, for respondent.
This suit in ejectment was commenced in the circuit court of Lincoln county, returnable to the September term, 1891. Summons was duly served on defendant more than 30 days before that term. Defendant did not answer or otherwise plead, and, on the fourth day of the term, final judgment was rendered against him for the possession of the land and for damages. Before the final judgment was rendered, defendant offered evidence of his title, of the possession of defendant, of the value of rents and profits, and of the damages. On the same day, defendant appeared by attorney, and filed a motion, supported by affidavits, to set aside the judgment by default, alleging grounds therefor which need not be here stated. This motion was sustained by the following order entered of record: "It is therefore ordered by the court that the judgment hereinbefore rendered be, and the same is hereby, set aside, and for naught held, and a new trial granted herein." From this order of court, plaintiff appealed.
Two errors are assigned: First, that in setting aside the judgment and granting "a new trial" the court refused to specify of record the ground or grounds on which the new trial was granted, as required by section 2241, Rev. St., and, second, that the motion and affidavits did not show that defendant had a meritorious defense to the action. The view we take of the case only requires a consideration of the first of these assignments. The statute (section 2241) provides that "only one new trial shall be allowed to either party," with certain designated exceptions, and requires the grounds upon which a new trial may be granted to be specified of record. We do not think an order setting aside a judgment rendered on default is included within the terms or intent of the statute. There had been no "trial," within the meaning of that term, and a trial must precede a new trial....
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...v. Sayman, 171 Mo. App. 11 , in certifying this case to the Supreme Court, stated that it was plain that under the decision in Crossland v. Admire, 118 Mo. 87 , this case was not appealable (followed in the case of Breed v. Hobart, 187 Mo. 140, loc. cit. 143-144 ), but certified it on the g......
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Shohoney v. Quincy, O. & K. C. Ry. Co.
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