| Mo. Ct. App. | Mar 2, 1903
This action is on an account for goods sold by plaintiff to defendants as partners. There was an attachment of property in aid. The property is claimed by interpleader as administrator of Eichard Corbin, deceased. The case was here prior to this and will be found reported in 83 Mo. App. 438" court="Mo. Ct. App." date_filed="1900-03-05" href="https://app.midpage.ai/document/rock-island-implement-co-v-sloan--corbin-6619575?utm_source=webapp" opinion_id="6619575">83 Mo. App. 438, to which reference is made for a further statement. It was ruled by us at that time that plaintiff’s peremptory instruction declaring that the interpleader could not recover should have been given and the judgment was reversed and the cause remanded. When the cause after-wards came up for hearing in the trial court, plaintiff
It is, however, insisted by plaintiff that the point made was saved by an instruction which was refused. Passing by any question whether' a point made on the overruling of such a motion could be saved by an instruction, we will say that when the case was reversed and remanded by us on the former occasion without any direction to the trial court, it did not indicate that we considered that judgment should be rendered without another trial. It indicated more to the contrary; for, ordinarily, remanding a cause is evidence that it should be tried again, and then, if the same condition of case presents itself, the trial court will take such action as may have been ruled to be proper by the appellate court. See authorities in respondent’s brief. It is not infrequent that we consider a demurrer ought to have been sustained and yet, from other considerations, such as feeling that the whole case has not been presented, or some matter suggests itself leading us to believe that justice would be better subserved by further investigation, we remand for another trial without directing any certain action by the trial court.
Plaintiff complains that the trial court erred in .overruling its motion to quash 'the deposition of W. D. Corbin. The motion is not set out in the bill of exceptions and no attention was called to it in the motion for new trial. The action of the court, therefore, is not before us.
The only other point made in plaintiff’s brief was stated along with the one last disposed of. It is that the court should only have admitted that part of the testimony of J. H. Sloan which did not contradict his testimony given in the former trial. The bill of exceptions does not show what his testimony at the former trial
It seems that there were several extensions of time for filing the bill .of exceptions. Two of these were in vacation and are evidenced by vacation entries in the record. These do not show that the judge made the order. There is no written order of the judge and the entry does not purport to be made by him or by his direction. Eespondents claim that it could not have been done by the cleric who had no authority. That it is a statutory power vested in the judge and should appear to have been exercised by him. The question is worthy of consideration, but as what we have said disposes of the case we make no decision of the point.
The judgment is affirmed.