26 Mo. 494 | Mo. | 1858
delivered the opinion of the court.
In a trial by the court of an appeal from the county to the circuit court, it was the settled practice, under the act of 1849, for the court to file a finding of the facts as required by the act, when there was a trial by the court. (White v. Bennett’s Adm’r, 20 Mo. 262.)
We see no objection to the depositions. The fact that one of the parties to the suit died since they were taken can not affect them, as the suit survived the death.
No point was made relative to a demand in the court below, nor do we see any thing in the case which would warrant such an objection.
For the want of the finding of the facts the judgment will be reversed. As the witnesses contradicted each other, this was a fair case for a jury, who would determine their credibility. Without pretending to say on which side the justice
The other judges concurring, the judgment will be reversed and the cause remanded.