7 Mo. 577 | Mo. | 1842
Opinion of t]ie Court, delivered by
Glasscock brought an action of assumpsit against Fugate, and afterwards, m aid of his suit, sued out an attachment. The fact set forth in the affidavit on which the attachment issued was, that the plaintiff had good reason to believe, and did believe, that the defendant was about to dispose of his property, so as to hinder his creditors in the collection of their debts.
Fugate, by plea, denied that he was about to dispose of his property so as to hinder his creditors in the collection of
The cause for demurrer to the plaintiffs plea was, that it only put in issue the fact whether the defendant was about to dispose of his property so as to hinder his creditors in the collection of their debts, instead of the fact that the plaintiff had good reason to believe, and did believe, that he was about to dispose of his property, &c.
This question was argued at the last term of this court in the St. Louis district, and a majority of the court held that a plea such as was filed in this suit was good.' From the view we have taken of this cause, we do not deem a decision on this question necessary, nor are we required to determine the propriety of the action of the court below in discharging the jury, and permitting the replication to be withdrawn and a demurrer to the plea to be filed. We cannot, however, well see why, if the court has a power to’ award a repleader, when an immaterial issue has been found, itrnay not at once arrest its proceedings, and dispose of an issue which it is as-certa’ne(l uot determine the controversy between the parties. We hold, that when the defendant pleaded over in ^ar to the action, he waived his matter of abatement. If he thought proper to do so, he might have stood upon the sufficiency of his plea, and after letting judgment by default §° against him, might have brought up the question to this court. No principle is belter settled than that a party by pleading in bar, waives all dilatory pleas. The object of the defendant’s plea is not to determine ihe merits of the con- . , . , , troversy between the parties, but to turn him out of court, anc*- comPel him to begin anew. A suitor has obtained a
As to the refusal of the court, to grant a new trial because the verdict is against evidence, we cannot see any thing in the record to warrant us in disturbing it. If the circuit judges are in contemplation of law, competent to discharge the duties assigned them, why, when they have presided at the trial of a cause, witnessed its progress, observed the demeanor of the witnesses, and thereby ascertained the credit due iheir testimony, and shall advise us, by its refusal to grant a new trial, that the verdict is j ust, shall this court with opportunities so far inferior to those possessed by the judges of the circuit court, take upon itself to say, that those judges have erred, and reverse their judgments. It must be a glaring case to induce this court to interfere against the opinion of the circuit court, It neither comports with the due administration of justice, nor the respect due the circuit court, to control the exercise of their discretion on all matters.
It is also assigned for error, that the circuit court erred in awarding, as a part of its judgment, that the damages recovered should bear ten per cent, interest. It seems, after the judgment was entered in the usual form, a was made at its foot, that it should bear ten per cent, interest. If this were deemed an error in the judgment of the court below, it might be corrected here without
Judgment affirmed,
Napton, Judge, absentfrom ihe bench.