Walser v. Haley

61 Mo. 445 | Mo. | 1875

Napton, Judge,

delivered the opinion of the court.

This suit originated before a justice of the peace, and an attachment was sued out, on the ground that the defendant was about to leave the State.

On the trial of the issue under the plea in abatement in the circuit court, some evidence was excluded by the court supposed to have been legal, to which exceptions were taken, and after verdict for defendant, a motion for a new trial was made and a motion in arrest, but the case proceeded as the statute directs, and the plaintiff obtained his judgment, and then appealed from the judgment for costs on verdict found in the plea of abatement.

The case of Davis vs. Perry (46 Mo., 449), decides that no appeal under the present statute is allowed from the judgment on the plea in abatement, as it is not a final one. It is not easy to see how redress is to be obtained for errors committed on the trial of the plea in abatement as‘it is not likely that the plaintiff would desire to reverse his own judgment subsequently obtained. But no other method is perceived of correcting errors in any branch of the case, than by appealing from the final judgment, which may in fact be of no value without the attachment.

The judgment must be affirmed.

The other judges concur.