Long v. Towl

41 Mo. 398 | Mo. | 1867

Wagner, Judge,

delivered the opinion of the court.

Plaintiffs commenced their action in the Washington cou-nvty Circuit Court against the defendant, and the court dismissed their action ; they appealed from that decision to the Second District Court, but filed no motion in the Circuit, Court for a new trial or in arrest of judgment. The District Court upon a hearing of the cause affirmed the judgment, and it is now brought here by writ of error. The law provides that, before a case can be taken to an appellate court,, a motion for a new trial, or in arrest of judgment, must be filed within four days, if the term so long continue ; and. if not, then before the end of the term—G. S., ch. 172, § 6. This is intended to give the inferior court an opportunity to' correct its own error, and unless such motion is filed at the appropriate time, the cause will not be reviewed in the appellate tribunal—Richmond v. Pogue, 36 Mo. 313; State v. Marshall, 36 Mo. 400; Banks v. Lades, 39 Mo. 406. The decision of the Circuit Court must be regarded as an involuntary non-suit entered up against the plaintiffs, and to avail themselves of the error, if error there be in the proceedings, they should have filed their motion to set aside the judgment, and, upon its being overruled, duly taken exceptions. ■ But this they neglected to do, and hence there is nothing available in this court, nor was there anything in the District Court on which to predicate error. The case was not properly in that court, nor is it in this court, and the judgment will be affirmed ; but as the matter may be again litigated, we will say that we entirely disapprove of the manner in which the answer was framed, attempting as it did to conjoin the substance of a demurrer with matter which belonged to an answer in the same pleading. Such practice begets confusion, is at variance with the principles of pleading under our code, and ought not to be allowed.

Judgment affirmed.

The other judges concur.