Smith v. Best
| Decision Date | 29 February 1868 |
| Citation | 42 Mo. 185 |
| Parties | PATRICK SMITH, Appellant, v. WILLIAM BEST, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Court of Common Pleas.
Parker, Strong & Chandler, for appellant.
I. The instruments sued on were notes. (McGowan v. West, 7 Mo. 564; Brady et al. v. Chandler, 31 Mo. 28.)
II. The judgment of October 17, 1866, on the notes, was regular, and was taken at the proper time; and, no fraud or legal surprise being shown, the court erred in setting it aside. (7 Mo. 22; 19 Mo. 184.)
III. The first motion to set the judgment aside being withdrawn at the next term after the judgment was rendered, and another motion being filed afterward, the court had no right to set aside the judgment. The power of the court to interfere with a regular judgment closes with the term.
IV. Plaintiff properly refused to go to trial upon issues made by defendant's answer, and properly insisted on his rights under the judgment of October 17, 1866. (34 Mo. 326; 32 Mo. 423.)
V. If there was any defect in pleading in the case, the judgment cured it. (Gen. Stat. 1865, p. 671, § 19.)
Vories & Vories, and Woodson & Jones, for respondent.
I. It makes no difference, in this case, whether the instruments filed with the petition were promissory notes or not; for if they were notes (which is denied), yet the petition counts on the original cause of action, which is not merged. (Hanna v. Pegg, 1 Blkf., Ind., 181; Brown v. Gauss, 10 Mo. 265-6.) There is no promise to pay charged in this petition, and therefore a judgment rendered in the case, as upon a promissory note, would be bad after verdict. (McNeely v. Collins, 7 Mo. 69; 6 Mo. 276.)
II. The suit being brought for work and labor, and not on a note, the defendant had six days of court in which to appear and answer, and no judgment by default could be properly taken before that time had expired, and no final judgment until the next term of the court.
III. The defendant had a right to file his motion, and to have the judgment irregularly rendered set aside, either at the same term or the next term of the court where the irregularity appeared on the record. (Stacker v. Cooper Circuit Court, 25 Mo. 401; Doan v. Hally, 27 Mo. 256.)
IV. It is discretionary with a court to set aside a judgment by default, and in this case it cannot be seen but that the discretion was soundly and properly exercised.
This cause is brought here by appeal from the Fifth District Court. The suit was instituted in the Buchanan Court of Common Pleas, in August, 1866, and made returnable to the September term of that court.
On the third day of the term, the respondent having failed to enter his appearance and plead to the action, a final judgment was entered against him. A motion to set aside this judgment and permit him to answer was filed within the proper time, but continued over until the next term. The record shows that during that term, and on the 8th day of January, 1867, this motion was withdrawn; and on the 12th day of the same month another motion was filed, asking the court, for the irregularities therein set forth, to set aside the judgment, and permit respondent to answer the plaintiff's petition. This motion was sustained, and the answer duly filed. At a subsequent term of the court, the case being called for trial, the appellant (plaintiff below) refused to proceed further, and the cause was dismissed for want of prosecution.
Upon a careful examination of the former decision of this court upon the question of practice presented by this record, it is clear that, if a mere error or mistake in entering up a judgment is sought to be corrected, it can only be done by motion, filed within the proper time, and within the term at which the judgment is recorded. Such motion may, however, be continued over for cause, and determined at a subsequent term. In this case there was a continuance, and it would have been consistent with the rules of practice heretofore recognized by this court for the Circuit Court to have determined the same at the next term. This motion, however, seems to have been abandoned, and need not be further noticed. The one subsequently filed, on the 12th day of January, presents really the only question to be examined in this case. It is conceded that it was separate from and wholly independent of the former motion, and the reasons upon which it is based, if true, were altogether sufficient to justify the action of ...
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...the term before plaintiff was entitled to it. Branstetter v. Rives, 34 Mo. 316. See, also, Reed Bros. v. Nicholson, 93 Mo. App. 29; Smith v. Best, 42 Mo. 185. And so, too, when both final and interlocutory judgment by default taken at the same term in a suit not founded upon a bond, bill, o......
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