61 Mo. 221 | Mo. | 1875
delivered the opinion of the court.
When this cause was in this court npon a former occasion, the judgment of the lower court quashing the execution was reversed, because the points made for the appellant did not sufficiently appear in the record as then presented. (Brackett vs. Brackett, 53 Mo., 265.)
After the decision in this court, plaintiff obtained the issuance of a new execution, and the defendant appeared in court, within the time limited by the statute, and moved to set aside the judgment for irregularity, and also to quash the execution. This motion was sustained, and plaintiff appealed. The original proceedings are now before us, and the question is directly raised whether such irregularities were committed
The suit was instituted by attachment in the common pleas court of Pettis county, and the petition contained three counts. The first was upon a promissory note, and the two others were for money loaned at different times. At the return term the defendant appeared and filed a plea in abatement to the attachment, and upon that matter being submitted to the court, the issue was found for the defendant. Defendant made no further appearance, and on the sixth day of the term a final judgment was entered against him. It is insisted that this was irregular, as upon the two last counts he had six days in which to file his answer if the court continued .so long, and it is shown that the court was in session for several days afterwards. If the judgment was rendered upon the last two counts, the action of the court was premature and irregular, for it has been frequently decided that where a party has a certain number of days in which to plead or answer, it is error to take judgment on the last of those days or before they have all expired. (Doan vs. Holly, 26 Mo., 186; Hart vs. Walker, 31 Mo., 26; Branstetter vs. Rives, 31 Mo., 318; Lawther vs. Agee, Id., 372.) But the record leaves it in doubt as to whether judgment was really rendered on anything more than the first count, which was founded upon the note. It is. true that the amount for which the judgment was given was greatly in excess of what was due on the note, and was probably large enough to comprehend all that was included in three counts. The judgment entry is that “the court finds from the pleadings and evidence, that the defendant is justly indebted to the plaintiff in the sum,” etc., “ the same being founded on a note for the direct payment of money.” If the court, by inadvertence or mistake, made a miscalculation in computing the amount, that would not be one of the irregularities contemplated by the statute. The correction should be made in another manner.
The question of jurisdiction is based on the fact that neither of tl).e parties resided in Pettis comity at the time the suit
It follows that the judgment must be affirmed.