Doan v. Holly

27 Mo. 256 | Mo. | 1858

Scott, Judge,

delivered the opinion of the court.

We can not believe that the purposes of justice will be subserved in interfering with the judgment of the court below. It is conceded that where a judgment is irregularly obtained against the provisions of a statute or the rules of a court a party is entitled to have it set aside without showing any merits. It is enough that it was obtained against the law or the practice of the court. Unless the court has a discretion in setting the judgment aside, the law must be followed and the judgment pronounced irregular. The circuit courts formerly had rules prescribing the times within, which a transcript from the supreme court must be filed before a term, in order to make the cause to which it relates triable at that term. It does not appear from the record that there is any rule on the subject in the court in which this cause was tried. We can find no statute on' the subject. We are of opinion that the section of the practice act to which reference has been made does not apply to this case. (R. C. 1855, p. 1289, § 20.) It was not known, when the dockets of the term were made out, whether the former judgment given in the cause had been reversed or affirmed. The clerk then did not know whether any step was to be taken in the cause or not; he therefore could not docket it. The proceedings of the court below appear a little hasty, and, under ordinary circumstances, it would have looked better if a little indulgence had been extended to the defendant ; but here is a judgment rendered without violating any statute or rule of practice in a court in which the cause was properly triable. It does not appear that any injustice has been done. The demand is not denied to be due. Although the defendant, at the term at which the judgment now under revision was rendered, might have filed an answer to the merits, he failed to do it. Notwithstanding this, had an affidavit been made showing a meritorious defence to the action, time being asked for to file an answer and prepare for trial, it should have been granted. But as this is the third time that this cause has been in this court, and as it does not appear that there is any just defence to the demand of the plaintiffs, and as the object of the defendant, from any thing that appears, is merely delay, we do not conceive that we would be warranted in interfering with the judgment of the court below. Affirmed.

Napton, Judge, concurs.