State ex rel. Merrill v. Burns

• Decision Date: 31 October 1877
• Parties: THE STATE ex rel. MERRILL, Appellant v. BURNS et al.
• Court: Missouri Supreme Court

66 Mo. 227

THE STATE ex rel. MERRILL, Appellant

v.BURNS et al.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Schuyler Circuit Court.--HON. JOHN W. HENRY, Judge.

C. E. Vrooman, F. T. Hughes, Harrington & Cover and Higbee & Shelton for appellant

McGoldrick & Caywood for respondents, cited Martin v. Henley, 13 Mo. 312; Leahey v. Duydale, 41 Mo. 517.

HOUGH, J.

At the August term, 1874, of the Schuyler circuit court, in a suit brought by plaintiff against the defendants upon an administrator's bond, wherein the defendant, Burns, was principal, and the defendant, Grant, was surety, final judgment was rendered in favor of the plaintiff, and against the defendant, Grant. At the next term of said court, the defendant, Grant, filed a motion to set aside the judgment rendered against him for alleged irregularity in the rendition thereof, and for other causes, which motion was sustained by the court. Thereupon the plaintiff took the present appeal.

When a judgment is arrested, or set aside, no appeal can be taken until another final judgment is entered in the cause. In the present case, the plaintiff, in order to have the action of the trial court, in setting aside a judgment rendered by it at a previous term, reviewed by this court, should have refused to proceed further with the cause, and permitted final judgment to be rendered against him. Garesche v. Emerson, 31 Mo. 258; Gilstrap v. Felts, 50 Mo. 431; Bowie v. City of Kansas, 51 Mo. 459.

The appeal is manifestly premature, and must therefore be dismissed.

The other judges concur, except Judge HENRY, who did not sit.

APPEAL DISMISSED.