Risher v. Roush

• Decision Date: 31 December 1828
• Citation: 2 Mo. 95
• Parties: RISHER v. ROUSH.
• Court: Missouri Supreme Court

2 Mo. 95

RISHER

v.ROUSH.

Supreme Court of Missouri.

December Term, 1828.

APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU

M'GIRK, C. J.

This was an appeal from the Circuit Court of Cape Girardeau county, in a chancery case. This case appears to be, that Roush brought an action at law against Risher on a bond. To this action, Risher pleaded payment, and gave notice of set-off. On this state of the case, the parties went to trial, and judgment was had against Risher; no bill of exceptions was taken to any of the proceedings of the court. Risher afterwards filed his bill in chancery against Roush, to be relieved from this judgment, and enjoined proceedings on the same; the cause was heard before the Circuit Court, and the bill of Richer was dismissed, and the injunction dissolved. The bill alleges that the money in the bond was paid; this is denied by the answer. The bill also alleges, that when, or about the time the trial was to be had in the court below, certain depositions of Risher which would prove the payment, were set aside for informality; and that then he made his affidavit for a continuance, stating thereor what the testimony was, which was rejected; and that he expected to have the testimony by the next court, &c., &c. And made his motion for a continuance, which motion was by the court overruled; and that the court gave as a reason for overruling the motion, that if the said testimony was there it would not avail any thing, because, that Risher's remedy was in chancery. No bill of exceptions was taken to the overruling this motion, by which proceedings of the Court of Law, the complainant was induced to believe his remedy was in chancery, and he therefore did not save the point of suppressing his depositions and refusing the continuance, whereby judgment went against him. And that he is now without remedy at law. The answer does not admit nor deny these matters as to the depositions and continuance, but they are proved by the testimony of a witness. The Circuit Court dismissed the bill, on the ground that the matter had been submitted to, and adjudicated on, by a Court of Law; and that a Court of Chancery could not now overhaul it.

When this cause was before this court at the last term, I did incline to the opinion, that as a reason why the defendant at law failed to save his case, so that it could be revised in a court of error, was, owing to the suggestion of the court, that the remedy was in chancery, the party ought to have relief; but on...