126 Mo. App. 293 | Mo. Ct. App. | 1907
The action was for printing and publishing a libel and was brought in the circuit court of Lawrence county, where plaintiff and defendant R. Rosenthal resided. Defendant Robinson resided in Greene county and was the proprietor of the newspaper in which the libel was published. Summons was issued to
1. The judgment was not by default. Robinson’s plea to the jurisdiction of the court over his person and the denial thereof filed by plaintiff tendered an issue of fact to be tried on the trial of the merits, and which was actually tried and found against the defendant as shown by the recitals of the judgment. All the issues of fact raised by the pleadings in a law case must be tried at one time and by the same jury, and all the defenses which the defendant has should be stated in one answer. [Meyer v. Ins. Co., 184 Mo. l. c. 488, 83 S. W. 479; McNamara v. Transit Co., 382 Mo. l. c. 682, 81 S. W. 880; State ex inf. v. Vallins, 140 Mo. l. c. 535-6, 41
Section 597, Eevised Statutes 1899, as amended by the Act of 1901 (Laws of 1901, p. 86) in respect to counties having forty thousand inhabitants or under (to which class Lawrence county belongs) provides: “That in all counties having forty thousand inhabitants, or less than that number, every defendant who shall be summoned or notified according to the provisions of this chapter shall demur to or answer the petition on or before the first' day of the term at which he is required to appear, unless further time be given by the court; and in all cases wherein the defendant has been, served with process or notified thirty days before the first day of the term at which he is required to appear, and in all cases where the suit is founded upon any bond, bill of exchange or promissory note for the direct payment of money or property and the defendant has been served with process, as aforesaid, he shall demur to or answer the petition on or before the first day of the term, unless longer time be granted by the court.” The service of summons on defendant having been made more than thirty days before the first day of the March term of the Lawrence Circuit Court, the cause was triable at that term and.doubtless would have been tried but for the award of the change of venue on the petition of defendant Eosenthal. The transcript reached the ■office of the clerk of the circuit court of Stone county more than ten days before the first day of the February, 1906, term of the said court and the cause was therefore triable at said term. [E. S. 1899, sec. 826.]
2. In respect to the second ground of the motion, the affidavits filed in support show defendant was sick before, during and some days after the October term of
3. In regard to the equitable grounds set forth in the motion to have the judgment vacated, suffice it to say that equitable relief against a judgment at law can only be granted upon a trial on a petition in equity. [Phillips et al. v. Evans et al., 64 Mo. l. c: 23.] The motion to vacate the judgment, we think, was properly overruled and affirm the judgment.