73 Mo. 71 | Mo. | 1880
Rehearing
On Motion for Rehearing.
As sustaining the view that the petition does' not state a cause of action against the city, we are referred to the case of Barry v. St. Louis, 17 Mo. 121. The precise point in judgment in that case was this, and this only, that the city was not responsible for damages resulting from the negligence of a contractor in failing to put up sufficient barriers to warn or guard persons passing down the street. The question presented by this record is not whether the city is responsible for the negligence of
Lead Opinion
The statute is imperative that the motion for a new trial shall be made within four days after the trial. 2 Wag. Stat., p. 1059, § 6. It does not appear in this case, either from the record proper or from the bill of exceptions, when that motion was filed. If not filed in time, the only thing the circuit court could do, even if believing error had been committed during the progress of the trial, was to deny the motion. And if the motion was denied in such circumstances, there was no error in such denial, notwithstanding error may have been committed while the trial was progressing. Eor aught that appears to the contrary, the motion may have been denied, not upon the merits, but because the requirements of the statute had not been complied with ; in which case, no error was committed. in denying the motion. He who alleges error must prove it, as every presumption will be made in favor of the correctness of the ruling of the lower court. Stewart v. Small, 5 Mo. 525; Vaughn v. Montgomery, 5 Mo. 529; Small v. Hempstead, 7 Mo. 373; Walter v. Cathcart, 18 Mo. 256; State v. Rogers, 36 Mo. 138. But while this presumption is indulged in favorable to the action of the circuit courts, no presumptions are indulged that parties file their motions in time. Eor these reasons we affirm the judgment.
