delivered the opinion of the court.
The respondent in this case moves to dismiss the appeal and strike out the bill of exceptions, because the same was not made and signed at the term in which the judgment was rendered. It appears that damages were assessed by the
The statute provides that “ exceptions may be written and filed at the time or during the term of the court at which they were taken, and not after ” ; and that “ all exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions ” —R. C. 1855, p. 1264, § 28. It has been the imiform practice in this State, that a bill of exceptions could not be filed after the term had expired at which the judgment was rendered, except by consent of parties, duly entered of record. But here the question is, whether a motion for a new trial can, at the instance of the court, be continued from the term at which the verdict was rendéred until the next succeeding term, and have the effect of carrying with it the cause, so that upon a final determination of the motion exceptions may be preserved by the «party. The statute intends that the exceptions shall be written out and filed during the term, while the cause rests in the breast of the court. But where a motion for a new trial is made at the close of the term, there may be good reasons for continuing it until the next succeeding term for final hearing. And until a final hearing and disposition of the motion, the whole matter would unquestionably rest in the breast of the court, and it would be competent for it, in its discretion for good cause, to sustain the motion and award a new trial. Until this result is reached, it cannot be said that the cause is finally de
In assessing damages on the dissolution of the injunction, the court permitted testimony to be introduced showing that on the 27th day of December, 1860, the time the injunction was granted, gold was at a premium of from two to three per cent, over Missouri bank paper, and that on the 23d day of January, 1863, vjhen the injunction was dissolved, it was at a premium of forty-seven to forty-eight per cent, over United States legal tender treasury notes. The court assessed the damages at the difference which existed between gold and United States legal tender treasury notes, and this is assigned for error.
The subject matter here enjoined was a sale under a deed of trust, and in this respect comes within the decisions in the cases of Kennedy’s Adm’x v. Hammond, 16 Mo. 34, and St. Louis v. Alexander, 23 Mo. 483. In both these cases, it was held by this court that an injunction to restrain the proceedings of a trustee to sell property, under a deed of trust, was not to be considered such an injunction upon money as to authorize the assessment of damages by the rule of per cent, laid down in the statute alone — R. C. 1855, p. 1249, § 13. In the last case, in speaking of the proper rule of assessment, where the trustee had been enjoined from selling the property, the court said: “ In all such cases, the court, or jury, should determine the amount of injury, by evidence before it, or them, as to the damages sustained, the probable amount that would have been realized, the value of money at the time, and other circumstances tending to show the damages sustained by the creditor in consequence of such injunction.” What is meant by the phrase “ value of money at the time,” is not very apparent. Certain it is, however, the circumstances of this case were not in the contemplation of the mind of the judge when it was written. If the party has been injured in consequence of the injunction, he is entitled to whatever
The judgment is reversed, and cause remanded.
Motion for-a re-hearing overruled.