Degener v. Kelly
| Decision Date | 05 June 1928 |
| Docket Number | No. 20343.,20343. |
| Parties | DEGENER et al. v. KELLY et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.
"Not to be officially published."
Action by John F. Degener, Jr., and others, copartners doing business as C. A. Auffmordt & Co., assignees of Edwin E. Berliner & Co., against John A. Kelly and another, copartners doing business as J. A. Kelly Woolen Company. Judgment for plaintiffs was affirmed by the circuit court, and defendants appeal. Affirmed.
Kane, Blackinton & Reid, of St. Louis, for appellants.
H. A. & Harry S. Gleick, of St. Louis, for respondents.
This case originated before a justice of the peace in the city of St. Louis. Respondents here, who were plaintiffs below, filed suit against defendants to recover for goods, wares, and merchandise sold and delivered to defendants, amounting to $94.13. The case was tried before the justice on August 13, 1926, and on August 16, 1926, judgment was rendered against defendants and in favor of plaintiffs, for the amount sued for. On August 25, 1926, defendants filed their affidavit for appeal, and gave bond. The case was returnable to the October term, 1926, of the circuit court of the city of St. Louis. On December 10, 1926, respondents paid the filing fee, and on December 13, 1926, on motion of the plaintiffs, the judgment of the justice was affirmed against the defendants and surety for failure to pay the filing fee.
On March 30, 1927, and at the February term of the circuit court of the city of St. Louis, defendants filed a motion to set aside the judgment and reinstate the cause. This motion was overruled, and defendants filed a motion for a new trial, which was also overruled, after which they prosecute this appeal.
The motion to set aside the affirmance of the judgment alleged, among other things, that no notice was given them of the lodging of the papers in the circuit court, and that the defendants offered to pay the filing fee on the 2d day, and also on the 30th day of October, 1926; that on September 9, 1926, notice of appeal was served on defendants; that the plaintiffs, through their attorneys, waived the paying of the filing fee by entering into certain stipulations; that the defendants have a good and meritorious defense, in that they bought no goods from plaintiffs, and that no assignment of the account sued on was ever filed in the suit.
The appellants contend here that the court erred in overruling their motion in the nature of a writ of error coram nobis, because the rules of the circuit court of the city of St. Louis require two days' written notice to the adverse party, or his attorney, in order to call up any application, demurrer, motion, or other preliminary matter to be heard by the...
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Owens v. Vesely
...at 440; Jeffrey v. Kelly, 146 S.W.2d 850, 852 (Mo.App.1940); Haines v. Jeffrey Mfg. Co., 31 S.W.2d 269, 270 (Mo.App.1930); Degener v. Kelly, 6 S.W.2d 998 (Mo.App.1928). See also Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 142 (banc 1952); 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remed......