Morp v. Burris

31 Mo. 308

• Court: Supreme Court of Missouri
• Decided: January 15, 1861
• Status: Published

Opinion

Ewing, Judge,

delivered the opinion of the court.

This was an action on several promissory notes given for the purchase money of real estate, and also to subject the land to their payment. There being no defence to the action, judgment by default was rendered which was made final at the same, being the return term. The defendant filed his motion in arrest of judgment on the ground that the proceeding being to enforce the vendor’s lien, there could be no final judgment at the appearance term.

In Doan v. Holly, 26 Mo. 188, it was decided that where the suit was on a note for the direct payment of money, and also to foreclose a mortgage, final judgment was improperly taken at the return term. "We see no such difference between this case and that, such as to warrant a different practice. The situation of the plaintiff, who is the vendor retaining the legal title, in respect to the real estate in question, is analagous to that of a mortgagee, and the rights and remedies of both are similar.

Judgment reversed and the cause remanded ;

Judge Nap-ton concurring. Judge Scott absent.