Rigdon v. Ferguson

• Decision Date: 18 February 1903
• Citation: 172 Mo. 49,72 S.W. 504
• Parties: RIGDON v. FERGUSON et al.
• Court: Missouri Supreme Court

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

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 stricken out upon the motion of the adverse party." This rule was invoked by the plaintiff at the hearing of the motion. The court sustained the motion to strike out, to which action the defendants excepted, and when the cause was reached on the docket there was a judgment rendered for the plaintiff for possession. On the same day a motion for new trial was filed by defendants, founded alone on the action of the court in refusing to grant leave to file the answer, and in striking it out, which motion the court overruled; and defendants excepted, and bring the cause here by appeal. They assign for error the refusal of the court to allow defendants to file their answer.

So far as the abstract of the record shows, there was no exception taken to the refusal of the court to allow the...