Hart's Administrator v. Walker

31 Mo. 26

• Court: Supreme Court of Missouri
• Decided: October 15, 1860
• Status: Published

Opinion

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, 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.