15 Mo. 219 | Mo. | 1851
delivered the opinion of the court.
This was an action, commenced in the name of the State of Missouri to the use of C. C. Zeigler, on an administration bond. The case was brought in the circuit court of Ste. Genevieve county, and a plea, that the cause of action did not accrue within ten years, was filed. A demurrer to this plea was overruled, and after judgment the cause was
There being a final judgment of affirmance in the supreme court, and it not appearing from the record that the cause was remanded to the circuit court, with leave for further proceedings, it is not perceived on what principle it could be prosecuted in the court below. The pleadings having been made up, the suit c-ould not be defeated by the defence of a former judgment, and the course pursued by the defendant was the only one open to him. If leave was really given, to withdraw the demurrer and take issue on the plea of the statute of limitations, the record should* have been so amended as to show that fast, by an application to this court before any proceedings were had in the court below. While the written opinions of this court, or certified copies of them, might be resorted to, as guides in amending its records, it would he unsafe, as well as unwarranted by any principle, to give the printed decisions any such force.
The judgment will be reversed and the cause remanded, to enable the party to amend his record, he paying the cost of this writ.