Matthews v. Cook

35 Mo. 286 | Mo. | 1864

DRYDEN, Judge,

delivered the opinion of the court.

1. This was not a case which by the provisions of the 20th section of art. 13 of the Practice A.ct (R. C. 1855, p. 1289) was required to be docketed for any special day. There was no issue of fact to be tried; the default having admitted the allegations t>f the petition, there was no inquiry of damages to be made, no damages being asked, and there was no motion or other matter of law for argument at the term at which the case was docketed. The case standing upon the interlocutory judgment, without any issue of law or fact to be heard, was liable to be taken up, and the judgment made final, at any time in the term next after that at which the default was entered, the law fixing no time in the term succeeding the interlocutory term when the judgment may be made final. There was, therefore, no irregularity, much less error, in the action of the court in making the judgment final before the day on which the case was docketed, but in the term succeeding the default.

2. The Circuit Court may for good cause shown set aside an interlocutory judgment, but can only exercise this power before the entry of final judgment. (R. C. 1855, § 5, p. 1278.) In this case the motion to set aside came after the final judgment, and was therefore too late. We do not wish to be understood as deciding that if there be any irregularity or error in the final judgment, that such default cannot be reached at the proper time in the court rendering the judgment.

The motion to set aside was properly refused. We find no error in the record. Let the judgment be affirmed ;

the other judges concur.