Ward v. Quinlivin

Sherwood, C. J.

Action on a judgment recovered in the State of New York. The answer set up that the judgment *454 was procured by fraud, and is the same answer which was held sufficient when this cause was here before. ( 57 Mo. 425 .) The plaintiff' had judgment. No evidence is preserved in the bill of exceptions, nor any motion for new trial; the only point preserved being that the court, treated the cause as an equitable' one by reason of the fraud pleaded, and refused defendant a trial by jury. It is altogether unnecessary to inquire whether or not the defendant was entitled to a jury. If entitled, the failure to give him one was purely matter of exception to be taken advantage of, and called to the attention of the lower court by motion for new trial, in order that its alleged error might be afforded opportunity for correction. (Weatherall v. Har ris., 51 Mo. 65 , and cases cited. Id. 108 ; Id. 115 ; Id. 455). Again, for aught that appears in the record, since no evidence is preserved, the defendant has been in noways prejudiced, even if entitled to a jury trial. No evidence having been preserved, we shall not assume that any was introduced to uphold the allegation of fraud in the answer, and if none were introduced, we certainly would not go through the barren formality of sending the cause back for a jury trial, when according to the showing made here such trial could avail the defendant nothing. We therefore affirm the judgment.

All concur.

Affirmed.