Doan v. Holly

• Decision Date: 31 July 1858
• Citation: 27 Mo. 256
• Parties: DOAN et al., Defendants in Error, v. HOLLY, Plaintiff in Error.
• Court: Missouri Supreme Court

27 Mo. 256

DOAN et al., Defendants in Error,

v.HOLLY, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1858.

1. Where a judgment is irregularly rendered against the provisions of a statute or the rules of court, the party against whom it is rendered is entitled to have it set aside without showing a meritorious defense to the action.

2. Where a judgment is reversed in the Supreme Court and the cause remanded to the Circuit Court, and the mandate of the Supreme Court is received by the clerk of the Circuit Court after the commencement of a term of said court, and said clerk, of his own motion, dockets the cause on the third day of the term, and the court renders judgment by default on the fourth day of the term; held-- no rule of the court appearing to have been violated--that the defendant was not entitled as of right to have this judgment set aside without showing a meritorious defense.

Error to Andrew Circuit Court.

This case has heretofore been before the Supreme Court. (See 25 Mo. 357; 26 Mo. 186.) A former judgment in said cause was reversed at the January term, 1858, of the Supreme Court. The mandate and opinion of the Supreme Court were received by the clerk of the Andrew Circuit Court after the commencement of the April term, 1858, of said court. The clerk, of his own motion, docketed the case on the third day of the term. Judgment by default was rendered against defendant, Holly, on the fourth day of the term. This judgment the defendant, Holly, moved the court to set aside for the following reasons: 1st, because the court had no jurisdiction of said cause for determination at said April term; 2d, because said cause was not docketed before and at the commencement of said term; 3d, because the cause was entered on the docket the third day of the term without an order of the court authorizing and directing the same to be done.

The court overruled the motion.

Loan, for plaintiff in error.

I. The court had no jurisdiction of the cause. The judgment rendered at the September term, 1857, was a final disposition of the cause in the Circuit Court. The writ of error removed the whole case to the Supreme Court. The Circuit Court could again hold jurisdiction over the cause only by virtue of the mandate of the Supreme Court, and then only after notice express or implied. In this case the defendant had neither. If the defendant was bound to appear at the April term of the court, he was entitled to the time of the whole term in which to file his answer.

A. H. Vories, for defendants in error.

SCOTT, Judge, delivered the opinion of the court.

We cannot believe that the purposes of justice will be subserved in interfering with the judgment of the court below. It is conceded that where a judgment is irregularly obtained against the provisions of a statute, or the rules of a court, a party is entitled to have it...