Manion Blacksmith & Wrecking Co. v. Carreras

19 Mo. App. 535 | Mo. Ct. App. | 1885

On consideration of which

Thompson, J.,

delivered the opinion of the court.

On recurring to the question, we are of opinion that we were wrong in holding that the plaintiff lost the benefit of his bill of exceptions by failing to file a motion for new trial, or a motion for arrest of judgment, upon the ground that the court erred in overruling his motion for judgment non obstante veredicto. He did not want a new trial, and did not want to have the judgment arrested. He had recovered a substantial judgment, and what he wanted was a larger judgment on what he claimed to be the admissions of the pleadings.

But while this is so, we can not grant a re-hearing on this writ of error, because it is merely in the nature of a cross appeal, and, as we have reversed the judgment which the plaintiff obtained, and remanded the cause upon the defendant’s appeal in the same cause supra, the whole matter' must go back to the circuit court for further proceedings. As we have, upon consideration oí the plaintiff’s motion for re-hearing in that case, decided to overrule the same, we can not, of course, grant a rehearing in this case.

This motion for re-hearing is accordingly overruled,

with the concurrence of all the judges.