Thompson v. Wendling.

• Decision Date: 02 March 1920
• Docket Number: No. 15882.,15882.
• Citation: 219 S.W. 671
• Parties: THOMPSON et al. v. WENDLING.
• Court: Missouri Court of Appeals

219 S.W. 671

THOMPSON et al. v. WENDLING.

No. 15882.

St. Louis Court of Appeals. Missouri.

March 2, 1920.

Appeal from St. Louis Circuit Court; Glendy B. Arnold, Judge.

"Not to be officially published."

Action by James B. Thompson and others, as trustees, against George R. Wendling, Jr. From an order setting aside a judgment for defendant to permit plaintiff to take a nonsuit, defendant appeals. Reversed and remanded, with directions to reinstate the judgment.

McLaren & Garesche, of St. Louis, for appellant.

Taylor, Mayer & Shifrin, of St. Louis, for respondents.

ALLEN, J.

This is an action to recover upon a foreign judgment, viz. a judgment alleged to have been rendered in favor of the plaintiffs and against defendant in a Municipal Court of New York City. The proceeding before us was originally instituted before a justice of the peace. Upon appeal to the circuit court the cause was tried de novo before the court without a jury; a jury having been waived.

It appears that the cause was called for trial in the circuit court on April 19, 1916, during the April term, 1916, of said court; and after the evidence was heard the cause was submitted to the court, time being allowed for filing briefs. On May 19, 1916, at the same term, the submission was set aside in order to allow plaintiffs to offer additional evidence; and on May 25, 1916, it appears that additional evidence was adduced by plaintiff, and the cause was again submitted and taken under advisement; and on August 21, 1916, during the June term, 1916, of said court, the court entered judgment in favor of defendant. At the same time the court made a finding of facts, but such finding does not appear to have been made at the request of either party, and hence is not a finding under the statute (Lesan Advertising Co. v. Castleman, 265 Mo. 345, 177 S. W. 597), and is not to be treated as such. However, it may be noted in passing that the court found that the transcript of the record of the Municipal Court of New York City, introduced by plaintiff, was not properly authenticated, and that it did not in fact contain a copy of any judgment of said court in favor of plaintiffs.

Within four days after the rendition of this judgment, to wit, on August 23, 1916, the plaintiffs filed a motion for a new trial. While this motion was pending and undisposed of, the trial court, of its own motion, gave plaintiffs leave to withdraw their motion for a new trial and set aside the said judgment rendered by the court on August 21, 1916. The record before us shows that the said judgment in favor of defendant was in fact set aside by the court in order to allow plaintiffs to take a nonsuit. From the order setting aside the judgment in his favor the defendant prosecutes the appeal now before us.

It may be further noted that the trial court, in the first instance, declined to grant defendant an appeal from the said order setting aside the judgment in defendant's favor; whereupon defendant applied to this court and...