Critchfield v. Linville

140 Mo. 191 | Mo. | 1897

Shekwood, J.

This cause is here on what is usually termed a short transcript, that is a “certified copy of the record entry of the judgment,.together with the order granting the appeal.” R. S. 1889, sec. 2253.

The claim is made here that tivo judgments were entered in this cause in the lower court at the same term. A copy of the latter judgment has been certified to this court. The effect of the entry of this latter judgment was of course to set aside, vacate and abrogate the former one, though certainly this r'esult should have been .announced by a direct entry making such announcement.

The record recites that “plaintiffs by counsel except to setting aside judgment and to the modification of judgment heretofore entered.” But this entry on the record is no evidence whatever of the fact. The only way to preserve anything of that sort is to place and preserve it in a bill of exceptions, the only repository for things of that sort. Nichols v. Stevens, 123 Mo. loc. cit. 119; State v. Taylor, 134. Mo. loc. cit. 137. Therefore in absence of any showing in the bill of exceptions to the contrary, it will be presumed that plaintiffs acquiesced in the entry of the record judgment.

This case stauds on an entirely different footing to one where a demurrer is filed- to a pleading which is adjudged insufficient in law, and thereupon the pleader declines to amend and judgment accordingly, or where such pleading is held sufficient and the demurrent declines to plead further and judgment in accordance with such failure, because in such cases the record distinctly and affirmatively shows that the losing party does not acquiesce in the ruling made. .Besides it was but fair that the lower court should have been first moved to set aside the second judgment, and should it have refused to do so, then an exception should have been saved to such refusal before appeal taken. This was the only correct course to have pursued in the case before us.

There is no such showing made here in a bill of exceptions, and therefore judgment affirmed.

All concur.