Kidder v. Wright

72 Mo. App. 378, 1897 Mo. App. LEXIS 186

• Court: Missouri Court of Appeals
• Decided: November 23, 1897
• Status: Published

Opinion

Bland, P. J.

Suit on promissory note for $500, before a justice of the peace, trial and judgment for plaintiff. Subsequent to day on which judgment was rendered, an appeal was taken to the circuit court. At the second term of the circuit court after appeal was taken and on February 2, 1897, the judgment of the justice was affirmed on motion of the plaintiff for failure of the defendant to give notice of appeal as required by section 6342, Revised Statutes 1889. Motion to set aside the judgment was filed and sustained and the cause set down for trial on its merits. From this order the plaintiff, Kidder, appealed.

As&wkey;g:a°sider iirminceíof af' No trial of the cause was had in the circuit court, and hence there could have been no order granting a new trial, and none was made. The or-der setting aside the judgment is not such an order as can be appealed from. Crossland v. Admire, 118 Mo. 89; Schworer v. Christophel, 64 Mo. App. 81. The plaintiff to obtain a review of the action of the trial court should have saved his exceptions, refused to further prosecute his suit and suffered a dismissal of his suit for want of prosecution, and then brought his case here by appeal. Johnson v. R. R., 48 Mo. App. 630. The appeal not being authorized by law is dismissed.

All concur.