State v. Whitsell

55 Mo. 430 | Mo. | 1874

Sherwood, Judge,

delivered the opinion of the court.

A. M. Whitsell was indicted for selling liquor without license, and upon being arrested, entered into recognizance with Whittington and Harsell as sureties for his appearance at the April Term, 1871. At that-term on the application of Whit-sell, the cause was continued until the next term, and the defendant was informed by the court that he might depart in conformity to such continuance. At the same term however, at which the cause was continued and at a subsequent day thereof, without any notice to the defendant, and without setting aside the continuance granted, the cause was called for trial and defendant not appearing, a forfeiture was taken against him and his sureties, and a scire facias ordered to issue.

At that term to which that writ was made returnable, judgment by default was rendered against defendants, which was virtually set aside by defendants being permitted to file an answer alleging the continuance of the cause and the attendant circumstances as heretofore stated, as a defense to the allegations of the writ.

The court, on the ground that nothing in bar of the action was alleged in the answer, treated it as a nullity, and rendered judgment as though no answer had been filed, and in this it clearly erred, as the matter set up in the answer unquestionably showed that no breach of the conditions of the recognizance had occurred. While a court has-the undoubted right to set aside an order continuing a cause, yet-this should never be done in a manner to operate as a surprise upon the party who has .been permitted to depart, and never without the existence of the most cogent reasons for vacating such order.

Judgment reversed and cause remanded,

Judge Tories did not sit; the other judges concur.