Spalding v. Meier

• Decision Date: 31 March 1867
• Citation: 40 Mo. 176
• Parties: CHRISTOPHER W. SPALDING, Appellant, v. ADOLPHUS MEIER, JOHN C. RUST, AND THEODORE G. MEIER, Respondents.
• Court: Missouri Supreme Court

40 Mo. 176

CHRISTOPHER W. SPALDING, Appellant,

v.ADOLPHUS MEIER, JOHN C. RUST, AND THEODORE G. MEIER, Respondents.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Law Commissioner's Court.

R. L. Farnsworth, for appellant.

A. M. Gardner, for respondents.

HOLMES, Judge, delivered the opinion of the court.

This is an appeal from the Law Commissioner's Court, not taken at the same term at which the final judgment was rendered. It appears that at the next term afterwards the plaintiff's attorney filed a motion, supported by his own affidavit, praying the court to set aside the entry of record of the previous term overruling the motion for a new trial, for the reason that it had been agreed between counsel that the motion should stand continued to the next term, with leave to file affidavits in support of it; that this understanding was announced in open court, and that the court did not dissent, and that the attorney of the plaintiff went away supposing it had been continued, but there was no entry by the clerk of the continuance; and when afterwards, at the same term, the motion came up for a rehearing in the absence of the plaintiff's counsel, it was overruled, and so entered. This application was overruled, a bill of exceptions filed, and an appeal taken to this court at the second term.

If there had been no irregularity in the record entries of the previous term or in the action of the court, or if it were merely a case of negligence on the part of the attorney, there would be no ground on which the court below could have been required to grant this motion, or on which this court could interfere for his relief. The court below does not appear to have been satisfied that there was any such irregularity as would justify it in granting the application. The affidavit does not go so far as to say that the court had expressly directed a continuance of the motion, but only that the judge did not dissent to the arrangement the counsel had made. Attorneys should be a little more certain of the action of the court, and ought to see that the proper entries are made by the clerk. The facts stated on the affidavit are not denied by the other attorney. It would seem to be very probable that the misunderstanding arose from the failure of the clerk to enter the continuance as agreed upon. The plaintiff's attorney may be considered as having been in some fault that he did not furnish the clerk with a memorandum of the entry to be made, or, at least, see...