| Mo. Ct. App. | Apr 1, 1890
delivered the opinion of the court.
There is no bill of exceptions in this record ; but the record proper and certain other entries which the clerk of the circuit court has seen fit to copy into the transcript show that an action was begun by attachment by the Monroe City Bank against James P. Pinks and George P. Mudd, on two promissory notes ; that the attachment was levied upon certain real property and that there was an order of publication ; that on the fourth day of November, 1889, there was a judgment by default and a final judgment for the plaintiff; that on the sixth day of November, 1889, John H. Pinks filed a motion,' reciting that he was an attaching creditor of James T. Pinks, and asking that the judgment be set aside, and that he be permitted to come in and defend, — which motion was by the court overruled on the same day; and that, on the seventh of November, John H. Pinks filed a motion in arrest of the judgment, so called, dismissing his petition to be allowed power to defend, which was also overruled. To reverse this ruling, John H. Pinks prosecutes this writ of error.
The record proper in this case consists of the petition, the writ of attachment, the sheriff’s return thereon, the order of publication and the entry of judgment. See Bateson v. Clark, 37 Mo. 31" court="Mo." date_filed="1865-10-15" href="https://app.midpage.ai/document/bateson-v-clark-8001772?utm_source=webapp" opinion_id="8001772">37 Mo. 31, 34; Richardson v. George, 34 Mo. 104" court="Mo." date_filed="1863-03-15" href="https://app.midpage.ai/document/richardson-v-george-8001397?utm_source=webapp" opinion_id="8001397">34 Mo. 104. There the record ends. The other.matters above disclosed form no part of the record proper ; and, although the clerk has seen proper to copy them into the transcript, we cannot look to
In this case there is no evidence before us that any. ■motion was made, for this could only be shown by a bill of exceptions. There is no evidence that any exception was taken to the overruling of the same, if made ; for, assuming that the so-called motion in arrest could be treated as an exception, there is no evidence that this was filed and overruled, since it is not shown by a bill of exceptions..
But the plaintiff in error seeks to take the case out of the operation of this rule by the suggestion that such a motion in writing to be allowed to come in and- defend is in the nature of a petition, and not a mere motion. We are not of this opinion. It is not in any sense the foundation of any independent proceeding. It is simply a mode of moving the court for the privilege which the statute accords to other attaching creditors, where the defendant neglects to defend- the ’ action (Revised Statutes, 1889, section 570), and which the court may “in its discretion” grant or ref use. R. S., sec. 576. The motion in a proceeding under the statute
But what would be. gained by the argument, if. it were a petition ? It does not prove itself, and the burden of proof is • on the petition. The mere fact of the filing of the petition, and of its being overruled by the court, is not even evidence that the petitioner is an attaching creditor. We cannot speculate upon the reasons why the court overruled it, nor decide whether or not it was filed in time, since the court may not have overruled for any other reason than that no evidence was-offered in support of its allegation that the petitioner was an attaching creditor.
The order of the circuit court will be affirmed.