Lawther v. Agee

34 Mo. 372

Opinion

Bay, Judge,

delivered the opinion of the court.

In Doan v. Holly, 26 Mo. 186, it was decided by this court that a proceeding to foreclose a mortgage given to secure the payment of a promissory note for the direct payment of money, is not one of those actions in which the law contemplates that a judgment by default may be proceeded with to final judgment at the return term.

In Hopkins v. McGee, 33 Mo. 312, we held that in actions not founded on bonds, bills, or notes, for the direct payment of money or property, an interlocutory judgment could not be taken and made final at the same term, but that the taking of the one must precede that of the other at least one term.

In the case at bar, an interlocutory judgment was taken at the October term, 1863, and made final at the same term. This was an irregularity which entitles the defendant to have the judgment set aside, by motion in the court below. It is not a void judgment, but an irregular judgment, and the remedy of the defendant was to move to set it aside; and if the court had overruled the motion, it would have been error, for which this court would have reversed the judgment. But the defendant having omitted to take any steps in the court below to have the judgment set aside5 lie cannot avail himself of the irregularity by an appeal to this court. (See Watson v. Walsh & Patterson, 10 Mo. 454, and Branstetter v. Rives, decided at the present term of this court.

The other judges concurring,

the judgment will be affirmed.