Gilstrap v. Felts
50 Mo. 428
Mo.
1872
Check Treatment
Bliss, Judge,

delivered the opinion of the court.

This suit was for damages for seizing and converting personal property, and was instituted in Adair county, and upon defendant’s default interlоcutory judgment was then entered. At the next term he sought to have it set aside,'and, failing, took a change of venue to Schuyler county; and after a jury trial, wherein the jury disagreed, took another change to Sullivan. He again sought to have the default set aside, but failed. A trial was then had upon the assessment of damages, and the plaintiff recovered some $900. In removing the cause from Schuyler county the clerk had sent no transcript of the proceedings, and the trial seems to have been had upon the original papers. The defendant thereupon moved in arrest, and his motion was sustained upon the ground that the Sullivan court had no jurisdiction. The court thereupon made an order remitting the papers back to Schuyler and ordering a transcriрt, which was returned ; and the defendant was permitted, without setting aside the interlocutory judgment, to answer to the merits. Upon the new triаl the defendant recovered judgment, to reverse which the plaintiffs bring error.

The judgment upon the first verdict was arrested because the trial had been had upon the original papers instead of a transcript from the county from which the venue had been changed. When" there is a change of venue taken, the statute requires that the clerk shall forward a transcript of thе record proper, together with the original papers not forming a part of it, and at the expense of the party applying for the change. (Wagn. Stat. 1356-7, §§ 7-9.) No transcript was forwarded in this case, but the trial appears to ‍​‌​​​​​‌‌​​‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​‌‌‌‌​‌​​​​​‌‌‌‌​‍have been had upon the original pleadings ; the defendant, who had procured the change of venue, in effect consenting to such triаl. After a verdict against him he perceives the irregularity and objects to a judgment. But he is too late. The irregularity, if it existed, was his own, and he cannot take advantage of it. But there was no such irregularity in fact as could have injured either party. The statutе makes it the duty of the clerk to preserve upon his files the original pleadings and forward a transcript of *431them. This is his duty, and if any onе suffers from its non-performance he is answerable. But if, instead of forwarding copies, he shall send the originals, it does not follоw that there can be no trial upon such originals. Surely, when a copy suffices, the original cannot fail to do so. Ordinarily the presence of the original pleadings is essential; in a change of venue it is dispensed with. But if they are actually in court, and a trial is had upon them, on what principle can the proceedings be considered erroneous? The jurisdiction does nоt depend upon whether the trial is had upon the original papers or upon copies, but upon the order of chаnge and the presence of the parties.

I do not say that a party may not be interested in having the original papers in the custody of the proper clerk. If he proceed before the trial, and as soon as he discovers the mistake, he may perhaps obtain an order to send back such papers, with a rule to furnish a transcript. But even this ‍​‌​​​​​‌‌​​‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​‌‌‌‌​‌​​​​​‌‌‌‌​‍rule should not be granted so as to effect a continuance of the case and prejudice the party against whom the change hаs been taken. The opportunity for staving off trials already furnished the unscrupulous, who so often obtain a change of venuе for simulated reasons, should not be enlarged.

But this action of the court, although erroneous, cannot now be taken advantage of. When the judgment was arrested and a new trial ordered, the plaintiff should have refused to proceed further, and shоuld have demanded final judgment against him to enable him to bring up the case. (2 Johns. Cas. 213.) He will not be permitted to seek a new judgment, and, if dissatisfied with it, fall back upon the old. We have uniformly refused to review the action of the trial court upon demurrer ‍​‌​​​​​‌‌​​‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​‌‌‌‌​‌​​​​​‌‌‌‌​‍and other matters which might have been final, when those against whom it was had have conformed to it and proceeded to a new or final triаl; and since the case of Helm v. Bassett, 9 Mo. 52, writs of error are not allowed for granting new trials after the second trial has beеn had. Nor would it be granted after judgment was arrested, when, as under the peculiar circumstances of this case, it would and did result in а new trial.

*432After the motion in arrest had been sustained, the defendant was permitted to file his answer to the merits, the court apрearing to treat the arrest and new trial ordered as reaching back and covering the interlocutory judgment. But it had not that effect. The motion, by its terms, referred only to the final judgment ascertaining the damages, and the interlocutory judgment could not havе been arrested after it had been duly rendered. A motion in arrest goes to the verdict, and is a refusal of the court to enter judgment upon it, and usually for some uncured defect in the petition. The inaccurate way in which our records are commonly kept seems to confound motions in ‍​‌​​​​​‌‌​​‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​‌‌‌‌​‌​​​​​‌‌‌‌​‍arrest and for new trials with motions to set aside the judgment. The former motions must be made before judgment is rendered, and the verdict only should be entered, until such motions are disposed of; and then, if they are overruled, comes the judgment. The latter, of course, are subsequent to the judgment, and as to the interlocutory one under consideration had been twice made and overruled. The motion in arrest did not and could not reach it, and it was error for the court to pеrmit the defendant to answer to the merits, to put in issue facts confessed by such judgment. The motion of the plaintiff to strike out the answеr should therefore have been sustained.

The record presents the anomaly of two judgments, the first covering all the facts еxcept as to the amount of damages, and the second covering the same facts and directly opposed tо the former. If defendant would deny the trespass altogether, he should, upon showing good reason for his first default, have been permitted to answer, the default being set aside; or, if the trespass stands confessed, the amount of damages is directly in issue, and if none are shown the recovery will be nominal.

The judgment will be reversed and the cause remanded.

Judge Wagner concurs. Judge Adams ‍​‌​​​​​‌‌​​‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​‌‌‌‌​‌​​​​​‌‌‌‌​‍not present at the hearing.