State ex rel. Stewart v. Matlock

• Decision Date: 31 October 1884
• Citation: 82 Mo. 455
• Parties: THE STATE TO THE USE OF STEWART, Appellant, v. MATLOCK et al.
• Court: Missouri Supreme Court

82 Mo. 455

THE STATE TO THE USE OF STEWART, Appellant,

v.MATLOCK et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

J. R. Christian for appellant.

The court should not have permitted the defendants to file their answer nine days after the case was set for trial. Squires v. Bird, 23 Mo. 472. The court also committed error in refusing to allow the change of venue. Corpennyv. Sedalia, 57 Mo. 91. The merits on the facts were with the plaintiff.

Kimbrough & Terrill for respondent.

The judgment was not against the evidence, but in accordance with it. The application for the change of venue was properly overruled, as it was made out of time. R. S., § 3731.

MARTIN, C.

This is an action on the bond of a sheriff, which assigns for breach thereof his refusal to offset an execution and fee bill in favor of a defendant against whom he held an execution. It seems that John H. Stewart, for whose use this action is prosecuted, recovered a judgment against one Burton, and that Burton recovered a judgment against said Stewart. It is alleged in the petition that executions were issued upon these opposing judgments, and were placed in the hands of defendant, N. G. Matlock, as sheriff; that instead of offsetting the two demands, he collected the execution against plaintiff by levy and sale, and returned the one against Burton unsatisfied. The material facts of the complaint were put in issue by defendants. The case was tried by the court, without the intervention of a jury, and judgment was rendered in favor of defendants, exempting the sheriff from all liability. From this judgment the plaintiff appeals.

I. It is assigned for error that the court permitted the defendants to file their answer nine days after the case was set for trial. This was done before any default had been entered, and upon a showing of cause for the delay in an affidavit. I can see no abuse of its judicial discretion by the court in accepting the pleading at the time it was filed.

II. It is next urged, that the court erred in refusing a change of venue prayed for by plaintiff. The ground of the application was alleged to be an undue influence of defendants over the mind of the trial judge. In my judgment, the court committed no reversible error in refusing the application. It was filed on the 28th of July, 1881, in vacation, and states that information of the undue influence had been received by plaintiff at the last term of the court. On the 23rd of August, 1881, the plaintiff served the defendants with a notice that he would, on the first day of the September term, 1881, present his application to the court. This application was not presented to the court on the first day according to notice, but on the second day of the term. If this application had come from the defendant it would have been clearly out of time under section 3731, R. S. 1879, which assumes to prescribe a limit in time beyond which no application can be made. The statutes do not prescribe any fixed limits within which the plaintiff...