Morse v. Evans

Missouri Court of Appeals

Morse v. Evans

287 S.W.2d 387, 1956 Mo. App. LEXIS 47

CourtMissouri Court of Appeals

DecidedFebruary 21, 1956

DocketNo. 29357

StatusPublished

This text of 287 S.W.2d 387 (Morse v. Evans) 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.

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Morse v. Evans, 287 S.W.2d 387, 1956 Mo. App. LEXIS 47 (Mo. Ct. App. 1956).

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Opinion

HOUSER, Commissioner.

Defendant appeals from an order of the Circuit Court of the City of St. Louis denying defendant’s motion to set aside a dismissal and to reinstate the cause upon the docket. The case originated in the magistrate court, where a trial on plaintiff’s petition and defendant’s counterclaim resulted in a judgment for plaintiff for $500 on his petition and for plaintiff on defendant’s counterclaim. On May 8, 1953 defendant appealed to the circuit court from the judgment of the magistrate court. On May 3, 1955 the cause, then on the dismissal docket, was dismissed by the circuit court for failure to prosecute. On May 18, 1955 defendant filed her motion to set aside the judgment of dismissal and to reinstate the case. It is from the order of May 20, 1955 denying this motion that defendant has appealed.

Defendant’s motion of May 18, 1955 in the nature of a motion for a new trial, was not filed within ten days after the entry of judgment, as required by Section 510.340 RSMo 1949, V.A.M.S. The errors alleged in the motion are of such a nature as to require presentation in a motion for a new trial in order to be preserved for appellate review, i. e., they do not come within any of the exceptions set forth in Supreme Court Rule 3.23, 42 V.A.M.S. This court cannot consider these allegations of error for the reason that defendant’s motion was not filed within the statutory time. State v. Henry, Mo.App., 205 S.W.2d 743; Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1; Poncot v. St.Louis, I. M. & S. R. Co., 176 Mo.App. 225, 161 S.W. 1190; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Boegemann v. Bracey, 315 Mo. 437, 285 S.W. 992. Accordingly, the Commissioner recommends that the judgment of the circuit court be affirmed.

PER CURIAM.

The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.

The judgment of the circuit court is, accordingly, affirmed.

ANDERSON, P. J., and N. T. CAVE and GEORGE P. ADAMS, Special Judges, concur.

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HOUSER, Commissioner.

Defendant appeals from an order of the Circuit Court of the City of St. Louis denying defendant’s motion to set aside a dismissal and to reinstate the cause upon the docket. The case originated in the magistrate court, where a trial on plaintiff’s petition and defendant’s counterclaim resulted in a judgment for plaintiff for $500 on his petition and for plaintiff on defendant’s counterclaim. On May 8, 1953 defendant appealed to the circuit court from the judgment of the magistrate court. On May 3, 1955 the cause, then on the dismissal docket, was dismissed by the circuit court for failure to prosecute. On May 18, 1955 defendant filed her motion to set aside the judgment of dismissal and to reinstate the case. It is from the order of May 20, 1955 denying this motion that defendant has appealed.

Defendant’s motion of May 18, 1955 in the nature of a motion for a new trial, was not filed within ten days after the entry of judgment, as required by Section 510.340 RSMo 1949, V.A.M.S. The errors alleged in the motion are of such a nature as to require presentation in a motion for a new trial in order to be preserved for appellate review, i. e., they do not come within any of the exceptions set forth in Supreme Court Rule 3.23, 42 V.A.M.S. This court cannot consider these allegations of error for the reason that defendant’s motion was not filed within the statutory time. State v. Henry, Mo.App., 205 S.W.2d 743; Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1; Poncot v. St.Louis, I. M. & S. R. Co., 176 Mo.App. 225, 161 S.W. 1190; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Boegemann v. Bracey, 315 Mo. 437, 285 S.W. 992. Accordingly, the Commissioner recommends that the judgment of the circuit court be affirmed.

PER CURIAM.

The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.

The judgment of the circuit court is, accordingly, affirmed.

ANDERSON, P. J., and N. T. CAVE and GEORGE P. ADAMS, Special Judges, concur.

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287 S.W.2d 387, 1956 Mo. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-v-evans-moctapp-1956.

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