20 Mo. App. 61 | Mo. Ct. App. | 1885
delivered the opinion of the court.
The defendant appealed to the circuit court from a judgment of a justice of the peace, and failed to pay the filing fee, as required by the statute relating to the St. Louis circuit court. 2 Rev. Stat. 1506, sect. 17. Thereupon the plaintiff paid the filing fee, caused the case to be docketed, and moved for an affirmance for the failure of the defendant to prosecute his appeal, which motion was allowed and the judgment affirmed. The defendant filed a motion to set aside the affirmance and reinstate the cause, offering to pay the filing fee, and offering affidavits designed to excuse his failure to pay the filing fee, as required by the statute. This motion the court overruled. From the order overruling this motion, the defendant has appealed.
It is not claimed that the court committed error in affirming the judgment. The ground on which the appeal is prosecuted, is that the court refused to exfercise its discretion by setting aside the affirmance rrpon the
The court committed no error in affirming the judgment of the justice. Wilson v. Ryan, 15 Mo. App. 597; Bailey v. Lubke, 8 Mo. App. 57; Hardison v. Steamboat 13 Mo. 226. If the court committed no error in rendering the judgment, upon what ground can a reviewing court say that it committed error in refusing to set it aside ?
As this case involves a question of practice which may be imported, we will say that we are of opinion that in such a case as that presented t>y the record, the circuit ■court has power, upon the payment by the appellant, of the filing fee, and the showing of a sufficient excuse for failing to pay it, as required by the statute, to set aside .a judgment of affirmance, and to reinstate the cause within the term when the judgment of affirmance is rendered. But the exercise of this power addresses itself to the sound discretion of the court, and it is a settled rule of appellate procedure, that rulings which involve a mere exercise of judicial discretion, can not be reviewed ■on appeal, unless the discretion has been plainly abused. This rule has been frequently applied in cases where the supreme court has been asked to review the rulings of the circuit court in refusing to set aside judgments by default. Laurent v. Mullikin, 10 Mo. 495; Faber v. Bruner, 13 Mo. 541; Weimer v. Morris, 7 Mo. 6; Wagemann v. Jordan, 19 Mo. 503; Dalton v. Mowry, 49 Mo. 164; Webster v. McMahan, 13 Mo. 582; St. Louis v. Murphy, 24 Mo. 41.
The order appealed from will be affirmed.