McNeill v. McNeill

161 S.W. 858, 175 Mo. App. 523, 1913 Mo. App. LEXIS 226

• Court: Missouri Court of Appeals
• Decided: December 11, 1913
• Status: Published

Opinion

PER CURIAM.

The plaintiff in error in this proceeding complains of a judgment rendered by the circuit court of Dent county on August 27, 1912, in a divorce suit.

Our records show that the application for a writ of error was filed in the office of the clerk of this court on October 28,1912, but the application was not sworn to until January 27, 1913. The cause was continued by agreement of parties to the present term of this court. Defendant in error now moves the court to dismiss the writ of error for the reason that it appears of record herein that from the date of the rendition of the judgment in the circuit court until the date the application for the writ of error was filed, more than sixty days elapsed. The judgment, having been rendered on August 27,1912, in a divorce proceeding, cannot be inquired into by a writ of error applied for more than sixty days thereafter. The plaintiff in error should have applied for the writ on or before October 26, 1912. (The abstract furnished by plaintiff in error does not show that a motion for a new trial was filed in the circuit court.) Not having made her application until October 28, 1912, she was two days in default under section 2380, Revised Statutes 1909, which provides for writs of error that have for their object the reversal, annulment or modification of a final judgment or order in. a divorce proceeding. It has been held a number of times that in a divorce suit a writ of error must be sued out, if at all, within sixty days after the judgment is rendered. [Judge v. Judge, 38 Mo. 159 ; Allen v. Allen, 64 Mo. App. 417 ; Scott v. Scott, 44 Mo. App. 600.] Under the statute, therefore, this writ of error must necessarily be dismissed without any consi deratio.n of the -questions of alleged error arising upon the action of the circuit court.