Huttig Sash & Door Co. v. Montgomery

Missouri Court of Appeals

Huttig Sash & Door Co. v. Montgomery

57 Mo. App. 91, 1894 Mo. App. LEXIS 154

CourtMissouri Court of Appeals

DecidedMarch 5, 1894

StatusPublished

Cited by1 cases

This text of 57 Mo. App. 91 (Huttig Sash & Door Co. v. Montgomery) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huttig Sash & Door Co. v. Montgomery, 57 Mo. App. 91, 1894 Mo. App. LEXIS 154 (Mo. Ct. App. 1894).

Pincite

Opinion

Biggs, J.

— This is an action on a foreign judgment. The defendant denied that he was summoned, or that he appeared to the action, or that he authorized any one else to appear for him. The cause was submitted to the court, a jury having been waived, and the court found the issues for the defendant, and final judgment was entered for him. The plaintiff has appealed.

On the trial the plaintiff read in evidence what purported to be a copy of a judgment, rendered in the circuit court of Carroll county in the state of Arkansas, in favor of the plaintiff and against the defendant. The defendant testified that at the time the judgment was rendered he was a resident of Carroll county, Arkansas; that he had no notice whatever of the pend-ency of the action against him; that he did not appear to the action, nor did he authorize any one else to appear for him.

• The plaintiff excepted to the instructions of the court, and it also called the attention of the court to the exception in the motion for new trial. But the record does not show that it excepted to the action of the court in overruling the motion for new trial. Under repeated decisions this left the plaintiff in the position of having waived all matters of exception. McIrvine v. Thompson, 81 Mo. 647; Wilson v. Haxby, 76 Mo. 345; Jackson v. Railroad, 80 Mo. 147.

The plaintiff has pressed upon our attention a matter which we probably ought to notice. One of the grounds stated in the motion for new trial was that the defendant had committed perjury on the trial. Complaint is made that the circuit court abused its discretion by refusing to grant reasonable time to procure affidavits in support of the motion. The impeaching [93]*93evidence upon which the plaintiff relied was that of the circuit clerk of Carroll county, Arkansas', and of J. B. Watkins, both of whom resided at Eureka Springs in that county. The record shows that the judgment was rendered April 4, 1893, that the motion for new trial was filed on the seventh and that it was overruled on the eighteenth. Carroll county, Arkansas, and Barry county, Missouri, adjoin, and are connected by a railroad extending to Eureka Springs. The plaintiff had fourteen days in. which to procure the affidavits, which was certainly much more time than he could expect or was entitled to under the circumstances, especially since no excuse was offered for the delay. The court would have been justified in overruling the motion on the next day after it was filed, for the reason that the defendant's answer had been on file for almost six months, in which the defendant expressly denied that he had been served with process in the alleged action, or that he had appeared thereto,, either in persop or by agent or attorney. The plaintiff ought to have taken the depositions of its impeaching witnesses, or it ought tb have had them at the trial.

Finding no error in the record, the judgment will be affirmed.

All the judges concur.

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Biggs, J.

— This is an action on a foreign judgment. The defendant denied that he was summoned, or that he appeared to the action, or that he authorized any one else to appear for him. The cause was submitted to the court, a jury having been waived, and the court found the issues for the defendant, and final judgment was entered for him. The plaintiff has appealed.

On the trial the plaintiff read in evidence what purported to be a copy of a judgment, rendered in the circuit court of Carroll county in the state of Arkansas, in favor of the plaintiff and against the defendant. The defendant testified that at the time the judgment was rendered he was a resident of Carroll county, Arkansas; that he had no notice whatever of the pend-ency of the action against him; that he did not appear to the action, nor did he authorize any one else to appear for him.

• The plaintiff excepted to the instructions of the court, and it also called the attention of the court to the exception in the motion for new trial. But the record does not show that it excepted to the action of the court in overruling the motion for new trial. Under repeated decisions this left the plaintiff in the position of having waived all matters of exception. McIrvine v. Thompson, 81 Mo. 647; Wilson v. Haxby, 76 Mo. 345; Jackson v. Railroad, 80 Mo. 147.

The plaintiff has pressed upon our attention a matter which we probably ought to notice. One of the grounds stated in the motion for new trial was that the defendant had committed perjury on the trial. Complaint is made that the circuit court abused its discretion by refusing to grant reasonable time to procure affidavits in support of the motion. The impeaching [93]*93evidence upon which the plaintiff relied was that of the circuit clerk of Carroll county, Arkansas', and of J. B. Watkins, both of whom resided at Eureka Springs in that county. The record shows that the judgment was rendered April 4, 1893, that the motion for new trial was filed on the seventh and that it was overruled on the eighteenth. Carroll county, Arkansas, and Barry county, Missouri, adjoin, and are connected by a railroad extending to Eureka Springs. The plaintiff had fourteen days in. which to procure the affidavits, which was certainly much more time than he could expect or was entitled to under the circumstances, especially since no excuse was offered for the delay. The court would have been justified in overruling the motion on the next day after it was filed, for the reason that the defendant's answer had been on file for almost six months, in which the defendant expressly denied that he had been served with process in the alleged action, or that he had appeared thereto,, either in persop or by agent or attorney. The plaintiff ought to have taken the depositions of its impeaching witnesses, or it ought tb have had them at the trial.

Finding no error in the record, the judgment will be affirmed.

All the judges concur.

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57 Mo. App. 91, 1894 Mo. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huttig-sash-door-co-v-montgomery-moctapp-1894.

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