46 Mo. 311 | Mo. | 1870
delivered the opinion of the court.
This is a proceeding by motion to set aside a judgment by default. The judgment sought to be set aside was rendered by the Cedar County Circuit Court at its September term, 1866. At the succeeding March term, Walker, one of the defendants, moved the court to set the judgment aside, basing the motion upon the assumed ground that the court rendering it had no jurisdiction of his person. The motion waS overruled, and Walker excepted. A bill of exceptions was subsequently filed, and an appeal taken to the Third District Court.
What the District Court did with the motion and the judgment of the Circuit Court upon it, does not distinctly appear. The whole record is distressingly involved, confused, and repetitious. While it contains a mass of irrelevant matter, it fails to show
The District Court held that the original judgment was unwarranted, upon the ground that the return of service 'of process upon Walker was not properly authenticated. The defect of the return, as the District Court declares, consists in this: that it was signed by “John Butler, deputy sheriff,” and not by or in the name of the prineipal^sheriff. But whore did the court get that fact? It does not appear in the bill of exceptions. The bill of exceptions purports to contain a copy of the original judgment and a mass of other matter, but wholly omits the original summons, as also the return upoii it. If the merit of the motion is to be determined from the facts exhibited in the bill of exceptions, then there is nothing to show that the court committed any error in overruling it. In order to find error it is necessary to go outside of the bill of exceptions for its discovery. Unless the appeal from the adverse judgment of the court upon Walker’s motion had the effect of a writ of error to bring up the entire record, regardless of what the bill of exceptions contained, the summons and return were not in the case, and there was nothing for the District Court to base its judgment upon. We arc not prepared to say that the appeal had the effect sought to be attributed to it. However that may be, it was clearly the duty of the District Court to have acted directly upon the judgment appealed from, and to have either affirmed or reversed it. That was not done. The evidence of the record is that the court left that judgment untouched, and that it proceeded at once to reverse the* prior judgment, which was never appealed from.