Smith v. D'Lashmutt

• Citation: 4 Mo. 103
• Parties: A. SMITH v. L. J. D'LASHMUTT.
• Decision Date: 31 May 1835
• Court: Missouri Supreme Court

4 Mo. 103

A. SMITH

v.L. J. D'LASHMUTT.

Supreme Court of Missouri.

May Term, 1835.

APPEAL FROM NEW MADRID CIRCUIT COURT.

MCGIRK, J.

D'Lashmutt brought a bill in chancery in the Circuit Court of New Madrid county to stay proceedings at law before a justice of the peace, and to obtain an appeal. The bill states that the complainant was administrator of the effects of one D'Lashmutt, deceased, and that he employed one Smith as a lawyer to transact business for him as administrator. That the complainant, at the time of process being served on him, was in New Madrid, but then lived in Cape Girardeau county, some sixty miles from the place of trial; that he then employed one Delaroderie to attend to the trial of the cause as his agent, and instructed him to take an appeal to the Circuit Court if judgment went against him. That he returned home and became sick, and remained so till after the time had expired in which an appeal could be taken. That on the trial of the cause before the justice, Smith obtained judgment for about eighty-three dollars. That Delaroderie then declared he would take an appeal, but did not then do so. That in two or three days thereafter the agent started and went a part of the way to the justice's house to take the appeal in due form; that while on the way he was informed the justice had left home and had gone to New Orleans. The bill states that the justice did, in fact, about three days after the trial, go to New Orleans, and did not return home again till after the expiration of the time for taking an appeal. Whereby he was prevented from taking his appeal. The bill further alleges that Smith obtained judgment for more than was due to him. But it does not show how much too large the judgment is. The bill also alleges that Smith did not, on the trial, give the complainant all the credits he was entitled to, but does not show to what amount Smith failed to give credit. Then prays for an injunction and for an appeal to be decreed.

Smith admits the fact of the agency of Delaroderie; that the justice went away, as in the bill stated; denies he heard the agent say he would take an appeal; admits it may be the agent started to take the appeal, and failed to proceed because the justice was absent; denies that he obtained judgment for more than the amount due to him; says he gave all credits the complainant was entitled to. The complainant filed a replication, and on the bill, answer and replication the cause was set for hearing. On the...