Rigdon v. Ferguson

CourtUnited States State Supreme Court of Missouri
Writing for the CourtValliant
Citation172 Mo. 49,72 S.W. 504
Decision Date18 February 1903
PartiesRIGDON v. FERGUSON et al.
72 S.W. 504
172 Mo. 49
RIGDON
v.
FERGUSON et al.
Supreme Court of Missouri, Division No. 1.
February 18, 1903.

ANSWER—LEAVE TO FILE AFTER TIME EXPIRES —MOTION FOR NEW TRIAL —RULE OF COURT.

1. Defendants' request for leave to file an answer after the time limited had expired was refused, and no exception was taken, but defendants nevertheless filed the answer. Held not error to strike it out on motion; the error, if any, being in the refusal of leave to file the same.

2. Any error in refusing leave to file an answer after the time limited has expired cannot

[72 S.W. 505]

be made a ground of a motion for new trial, such a motion relating only to that which occurs on the trial.

3. Rule 4 of the circuit court, which provides that "all pleadings must be filed within the time prescribed by law, unless leave of court shall be obtained to file the same out of time, which leave must be obtained before the time for pleading expires and must be made a matter of record," etc., is within the power of the court, and is reasonable.

Appeal from circuit court, Callaway county; Jno. A. Hockaday, Judge.

Action by James F. Rigdon against Edward Ferguson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

N. D. Thurmond, for appellants. D. H. Harris, for respondent.

VALLIANT, J.


This is an action in ejectment. The suit was filed August 16, the writ served August 29, and the return day was December 10, 1900, on which day court convened. No answer to the petition was filed by defendants during the first three days of the term. On the fourth day, defendants, by their attorney, asked leave of court to file an answer. The court refused to grant the leave. It does not appear from appellants' abstract that any exception was taken to that action of the court. The defendants then filed their answer, and with it an affidavit setting out the reason why they had not filed it within the time prescribed by the statute. A motion was filed by the plaintiff to strike the answer from the files, and with the motion was filed an affidavit in support of it. There was at the time, and had been for several years, a rule of court in force, in these words: "Rule 4. All pleadings must be filed within the time prescribed by law, unless leave of court shall be obtained to file the same out of time, which leave must be obtained before the time for pleading expires and must be made a matter of record. Disregard of this rule will subject the pleadings to be...

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11 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...by Rule 22 of the rules of the Circuit Court of Jackson County, Missouri. Rule 22, Circuit Court of Jackson County; Rigdon v. Ferguson, 172 Mo. 49, 72 S.W. 504; Meierhoffor v. Hansell, 294 Mo. 195, 243 S.W. 131; Mackson v. Ins. Co., 115 S.W. (2d) 217; Pearce v. Rogers, 15 S.W. (2d) 874; Tho......
  • Shohoney v. Quincy, O. & K. C. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1909
    ...trial must be predicated upon some error committed in the trial by which the verdict or finding was improper." In Rigdon v. Fergurson, 172 Mo. 49, 72 S. W. 504, the defendant's answer had been stricken from the files, and there was a judgment for the plaintiff. Defendant filed a motion......
  • In re Howard's Estate
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 1907
    ...merely to direct the trial court's attention to errors alleged to have occurred during the actual trial of the issues. Rigdon v. Ferguson, 172 Mo. 49, 52, 72 S. W. 504; Aultman v. Daggs, 50 Mo. App. 280, 288. If this is the only purpose of a motion for new trial, such motion would not prope......
  • Kristanik v. Chevrolet Motor Co., No. 21359.
    • United States
    • Court of Appeal of Missouri (US)
    • September 15, 1931
    ...a brief or abstract in accordance with the rules of court. Taylor v. Heart of America Hospital Assn., 2 S.W. (2d) 804; Rigdon v. Ferguson, 172 Mo. 49, 72 S.W. 504; State ex rel. Pedigo v. Robertson (Mo. Sup.), 181 S.W. 987; Harding v. Bedoll, 202 Mo. l.c. 629, 100 S.W. 638; State ex rel. C.......
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11 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...by Rule 22 of the rules of the Circuit Court of Jackson County, Missouri. Rule 22, Circuit Court of Jackson County; Rigdon v. Ferguson, 172 Mo. 49, 72 S.W. 504; Meierhoffor v. Hansell, 294 Mo. 195, 243 S.W. 131; Mackson v. Ins. Co., 115 S.W. (2d) 217; Pearce v. Rogers, 15 S.W. (2d) 874; Tho......
  • Shohoney v. Quincy, O. & K. C. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1909
    ...trial must be predicated upon some error committed in the trial by which the verdict or finding was improper." In Rigdon v. Fergurson, 172 Mo. 49, 72 S. W. 504, the defendant's answer had been stricken from the files, and there was a judgment for the plaintiff. Defendant filed a motion......
  • In re Howard's Estate
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 1907
    ...merely to direct the trial court's attention to errors alleged to have occurred during the actual trial of the issues. Rigdon v. Ferguson, 172 Mo. 49, 52, 72 S. W. 504; Aultman v. Daggs, 50 Mo. App. 280, 288. If this is the only purpose of a motion for new trial, such motion would not prope......
  • Kristanik v. Chevrolet Motor Co., No. 21359.
    • United States
    • Court of Appeal of Missouri (US)
    • September 15, 1931
    ...a brief or abstract in accordance with the rules of court. Taylor v. Heart of America Hospital Assn., 2 S.W. (2d) 804; Rigdon v. Ferguson, 172 Mo. 49, 72 S.W. 504; State ex rel. Pedigo v. Robertson (Mo. Sup.), 181 S.W. 987; Harding v. Bedoll, 202 Mo. l.c. 629, 100 S.W. 638; State ex rel. C.......
  • Request a trial to view additional results

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