Pratt v. Rogers

• Decision Date: 31 August 1837
• Citation: 5 Mo. 51
• Parties: PRATT v. ROGERS.
• Court: Missouri Supreme Court

5 Mo. 51

PRATT

v.ROGERS.

Supreme Court of Missouri.

August Term, 1837.

ERROR TO THE CIRCUIT COURT OF MARION COUNTY.

U. WRIGHT, for Appellant. The points raised here for appellant, are, 1s That the court erred in refusing to set aside the judgment and grant a continuance. 2nd. That the court erred in giving judgment for the plaintiff, without a finding upon all the issues in the cause. For the last point, see Leak v. Elliott, decided by this court at its last term, and the authorities relied on in that case; also Archbold's Appendix, page 145, likewise, 3 Mo. R. 390, Jones and Jones v. Snedecor, Adm'r, a case precisely in point.

T. L. ANDERSON, for Appellee. The first error assigned by the appellant is, that the Circuit Court erred in overruling the motion of said appellant to set aside the judgment rendered in said cause, and grant a continuance thereof. The appellee in error insists that no such motion, or evidence in support of it, legally appears upon the record in this cause. To enable this court to act upon the decision given by the court below, on said motion, the whole should have been incorporated in a bill of exceptions. It has been often decided by this court, that with regard to all extraneous facts, not presented by an issue of fact or law, the evidence must be saved; here no issues were made; no evidence saved. See Davis v. Hays, 1 Mo. R. 279; also, the case of Davidson v. Peck, 4 Mo. R. 445.

The second error assigned is, that the judgment was rendered against the said appellant, without a proper finding of the issues joined by the parties in the cause. The counsel for the appellee admits that the judgment is somewhat informal, but insists that the issues are substantially found, and the judgment good (see the record): but even if it be true that the issues are not expressly found, the matter is cured by the statute. The statute says that no exceptions shall be taken to anything unless expressly decided on by the court below. See Statutes of Mo. § 31, page 522. In this case no motion was made in arrest of judgment; the attention of the court was never called to the defect, if any there be. See the case of Davidson v. Peck, above referred to.

EDWARDS, J.^a1

This was an action of petition in debt, brought by Rogers against Pratt on a note. Pleas, assumpsit and set-off. Verdict and judgment for plaintiff. The defendant afterwards, and during the same term, moved the court to set aside the judgment and grant a continuance, upon facts set out in two affidavits filed. This motion was overruled. The first error assigned by the appellant is, “that the Circuit Court erred in overruling the motion of said appellant, to set aside the judgment rendered in said cause, and grant a continuance thereof.” No evidence in support of this motion is legally preserved. The ground upon which the motion is based should be presented by saving the evidence in the case; by incorporating it in a bill of exceptions, and praying the court to allow and sign the same. When this is done, the bill becomes part of the record. The entry that a motion was made and the affidavits filed, is a proper act of the clerk; but the affidavits, the evidence to support the motion, is not matter of record,...