St. Francis Mill Co. v. Sugg

• Decision Date: 07 December 1897
• Citation: 142 Mo. 364,44 S.W. 249
• Parties: ST. FRANCIS MILL CO. et al. v. SUGG et al.
• Court: Missouri Supreme Court

44 S.W. 249

142 Mo. 364

ST. FRANCIS MILL CO. et al. v. SUGG et al.

Supreme Court of Missouri, Division No. 1.

December 7, 1897.

NEW TRIAL — CONTINUANCE OF MOTION — LACHES.

1. A motion for a new trial must be regarded as having been passed from term to term until disposed of.

2. Laches in bringing a motion for a new trial to hearing cannot be charged where the moving parties are minors.

3. A new trial should be granted where a party is deprived of the opportunity to have the judge who tried the cause, because of the expiration of his term of office, review the finding therein, on a motion for a new trial.

Appeal from circuit court, Dunklin county.

Suit by the St. Francis Mill Company and others against the heirs of Wylie P. Sugg and others. Plaintiffs had judgment, and from an order denying a new trial, on the ground that the same had been abandoned, defendants appeal. Reversed.

R. B. Oliver and Wilson Cramer, for appellants. W. H. Clopton, for respondents.

BARCLAY, C. J.

This is an appeal by defendants in the same cause described in the report of plaintiffs' appeal, heard at this term (44 S. W. 247). A few facts should be added to those stated in the opinion on the other appeal. In the latter part of 1894 the defendants served notice that at the following January term, 1895, of the Dunklin circuit court, they would ask the court to pass upon their pending motion for new trial. When plaintiffs appeared at said January term, they filed the motion for an entry nunc pro tunc, which formed the gist of the contest upon the plaintiffs' appeal. The learned circuit judge refused to amend the record nunc pro tunc as requested, but he also denied the motion for new trial (to quote the record), "for the reason that the court deems the said motion to have been abandoned and to be not now pending in said cause." It appeared at the hearing of these motions in January, 1895, that one of the defendants, Wylie P. Sugg, was 19 years old, and that his co-defendants were then of the following ages, respectively: A. O. Sugg, 37 years; Clyde F. Sugg, 34 years; Henry A. Sugg, 26 years; Lalla Sugg, 24 years; James P. Sugg, 23 years; and Alfred Sugg, 21 years. At the time of the original proceedings in the cause, all the defendants were minors, residing in Tennessee. It was admitted that the motion for new trial was filed while Judge Owens was judge of the circuit court of Dunklin county; but, before the ruling upon it forming the subject of this appeal, his term of office had expired, and Judge Wear succeeded...