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Hart's Administrator v. Walker

Hart's Adm'r v. Walker, 31 Mo. 26 (1860)

Court: Supreme Court of Missouri · State Highest Courts
Decided: October 15, 1860
Judges: Scott
Citations: 31 Mo. 26

Cited by 4

Headnotes

1. In an action on a promissory note, tire defendant has the whole of the second day of the term, if the term should continue longer than two days, within which to file his answer to the petition. It would be irregular to render judgment by default on the second day of the term; default could not be taken earlier than the third day. If taken on the second day, the defendant is entitled to have the same set aside without an affidavit of merits. (R. C. 1855, p. 1235, § 24.) 2. Exceptions to the action of a court in overruling motions should be preserved in bills of exceptions.

Summary

Appeal from Stoddard Circuit Court. This was an action on a promissory note. On the second day of the return term, a judgment by default for want of an answer was taken against the defendants. On the same day and before the adjournment of the court, the defendants mdsed the court to set aside the judgment by default and for leave to file an answer immediately. The court overruled the motion. There was no bill of exceptions signed by the judge. The term continued more than three days. The defendants appealed to the supreme court. I. The defendants had a right to answer at any time during the second day of the term. (R. O. 1855, p. 1285, § 24.) And that, too, without having any conditions imposed upon them. I. The court properly rendered judgment by default. Good cause is not shown for the failure to answer. (Frazier v. Bishop, 29 Mo. 448.) A motion is no part of the record until made so by bill of exceptions, which has not been done in this case. (10 Mo. 457.) There is no bill of exceptions. Defendants offer no proof that they had any defence to make to plaintiff’s demand. There was no affidavit to that effect.

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Opinion of the Court — Scott

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Scott, Judge,

delivered the opinion of the court.

It appears from the record that the term of the Stoddard circuit court, at which the judgment in this cause was rendered, continued for more than two days. The defendants therefore had the whole of the second day on which to plead, •even though the cause was set for that day and was called on that day in its turn. The arrangement of the docket could not deprive them of a right conferred by law. Having the whole of the second day on which to plead, a judgment by default could not be taken on that day against the defendants. It could not be taken earlier than the third day. As the judgment by default was not taken regularly, the defendants were entitled to have it set aside without an affidavit of merits. The granting the motion was not a favor, *28 and the court could impose no terms. It was a legal right and they could insist on it as such. After the motion was overruled, the defendants should have filed a bill of exceptions and preserved their motion in it and the action of the court upon it, which should have been signed by the judge. As the matter stands, there being no bill of exceptions, the judgment must be affirmed.

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Cited by 4 cases

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Relies on it most ⓘ

Hill v. Combs92 Mo. App. 242 (1902)
State ex rel. Estes v. Gaither77 Mo. 304 (1883)
Marsden v. Nipp30 S.W.2d 77 (Mo. 1930)
Brackett v. Brackett61 Mo. 221 (1875)

Most recent

Marsden v. Nipp30 S.W.2d 77 (Mo. 1930)
Hill v. Combs92 Mo. App. 242 (1902)
State ex rel. Estes v. Gaither77 Mo. 304 (1883)
Brackett v. Brackett61 Mo. 221 (1875)

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