Riddlesbarger v. McDaniel

• Decision Date: 31 March 1866
• Parties: JESSE RIDDLESBARGER et al., Appellants, v. THOMPSON MCDANIEL et al., Respondents.
• Court: Missouri Supreme Court

38 Mo. 138

JESSE RIDDLESBARGER et al., Appellants,

v.THOMPSON MCDANIEL et al., Respondents.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

Sharp & Broadhead, for appellant.

I. The appellants insist that this act of Congress was constitutional and valid; but as that question is not raised, or involved in this cause, we neither cite authorities, nor make an argument in regard to it. For,

II. If the act of Congress, making treasury notes money and a legal tender, was within the constitutional power of Congress, then treasury notes stood upon the legal ground of gold and silver, and at the last sale under the trust deed, either gold or treasury notes (whichever was offered) should have been taken from the purchaser, and was so much lawful money--Henderson v. McPike, 35 Mo. 255; and respondents received no damage.

III. If the act of Congress referred to was not within the constitutional power of Congress, then nothing but gold and silver was lawful money or a legal tender for debts; respondents were not bound to receive any other money than gold and silver, and if they did so, it was their own act, for which they cannot complain.

Hill & Jewett, for respondents.

Upon the motion to dismiss the appeal because the bill of exceptions was not taken and allowed at the same term the judgment was entered, we refer to Hassinger v. Tye, 10 Mo. 156; Diepenbrock v. Shaw, 2 Mo. 122; Sutter v. Street, 21 Mo. 157; State v. O'Blennis, 21 Mo. 272; Farrar v. Finney, 21 Mo. 569; Wilcoxson v. McBride, 23 Mo. 404; Ellis v. Andrews, 25 Mo. 327; R. C. 1855, p. 1264, § 28.

Upon the point of the correctness of the ruling of the court, in allowing the difference as damages between the value of gold, the only legal tender at the time of the injunction, and its value at the dissolution, (or sale, immediately following it,) over and above United States legal tender notes, in which the defendants were compelled to take their pay, we refer to Kennedy's Adm'x v. Hammond & Hall, 16 Mo. 351-2 et seq.; City & Co. of St. Louis v. Alexander, 23 Mo. 522 et seq.; R. C. 1855, p. 1249, §§ 11, 13.

WAGNER, Judge, delivered the opinion of the court.

The respondent in this case moves to dismiss the appeal and strike out the bill of exceptions, because the same was not made and signed at the term in which the judgment was rendered. It appears that damages were assessed by the court below upon the dissolution of an injunction; and that the appellants, at the same term, and within the time prescribed by law, filed their motion for a new trial, which motion was by the court continued till the next term. At the next term, the motion was considered by the court and overruled. The appellants excepted, and filed their bill of exceptions, and appealed to this court. It is contended that as the bill of exceptions was not made and signed during the term at which the judgment was rendered, that therefore it was filed without authority of law, and is a mere nullity, and should be stricken out.

The statute provides that “exceptions may be written and filed at the time or during the term of the court at which they were taken, and not after;” and that “all exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions”--R. C. 1855, p. 1264, § 28. It has been the uniform practice in this State, that a bill of exceptions could not be filed after the term had expired at which the judgment was rendered, except by consent of parties, duly entered of record. But here the question is, whether a motion for a new trial can, at the instance of the court, be continued from the term at which the verdict was rendered until the next succeeding term, and have the effect of carrying with it the cause, so that upon a final determination of the motion, exceptions may be preserved by the party. The statute intends that the exceptions shall be written out and filed during the term, while the cause rests in the breast of the court. But where a motion for a new trial is made at the close of the term, there may be good reasons for continuing it until the next succeeding term for final hearing. And until a final hearing and disposition of the motion, the whole matter would unquestionably rest in the breast of the court, and it would be competent for it, in its discretion for good cause, to sustain the motion and award a new trial. Until this result is reached, it cannot be said that the cause is finally determined. And as the statute requires all exceptions to be embraced in the same bill, it will be correct if filed at the term when the...