City of St. Louis v. Boyce

31 S.W. 594, 130 Mo. 572, 1895 Mo. LEXIS 416

• Court: Supreme Court of Missouri
• Decided: November 19, 1895
• Status: Published

Opinion

Sheewood, J.

The city instituted this proceeding to condemn certain property in order to open Allen avenue, under ordinance 15,667. The commissioners brought in their report, and defendant filed exceptions thereto. These exceptions were overruled on January 4, 1893, during the December term. Within four days thereafter, defendant filed her motion for a new trial. On the next term in February of that year, to wit, on March 8, the motion for a new trial was overruled and defendant immediately filed her bill of exceptions, and at the next term, to wit, on April 15, judgment was rendered against the defendant, from which she took, during the same term, June 3, her now pending appeal.

The point is now made here, that no motion for a new trial was filed, as required by law, and that the motion, filed when it was, was lia wholly nugatory act, inasmuch as the action of the trial court on the exceptions was not a final judgment.”

Our statute, section 2243, Revised Statutes, 1889, requires that a motion for a new trial shall be made within four days after the trial. We have repeatedly held that this statute is mandatory, and that it must affirmatively appear that the motion was filed within the time required by law. Welsh v. City, 73 Mo. 71; Moran v. January, 52 Mo. 523; Long v. Towl, 41 Mo. 398; Richmond’s Adm’x v. Wardlaw, 36 Mo. 313.

Here, no motion for a new trial was filed after the rendition of the judgment, which must be regarded, as in the nature of the coming in of a verdict, or as the finding by the court. It was well enough for defendant to tender her bill of exceptions at the February term and have the same signed and filed when her exceptions to the commissioner’s report were overruled, for this was necessary in order to preserve her objections taken at that term. State v. Ware, 69 Mo. 333; Henze v. Railroad, 71 Mo. 642.

But it was equally necessary for defendant to file her motion for a new trial within four days after the rendition of the judgment, because until that time no final result was announced; the whole matter lay within the breast of the trial court, and it was but right that the court should have the customary time appointed by the statute in which to review its action. But no such opportunity was afforded that court for the correction of any alleged errors. It is just as much a failure in statutory conformity to file a motion for a new trial before the proper time, as it is to file it after that time. Consequently, no matters of mere exception can be reviewed in this case, and, inasmuch as there are no errors in the record proper, the judgment should be affirmed.

All concur.