Mudd v. Walser

Missouri Court of Appeals

Mudd v. Walser

68 S.W. 1056, 95 Mo. App. 285, 1902 Mo. App. LEXIS 40

DecidedJune 9, 1902

StatusPublished

This text of 68 S.W. 1056 (Mudd v. Walser) 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.

Bluebook

Mudd v. Walser, 68 S.W. 1056, 95 Mo. App. 285, 1902 Mo. App. LEXIS 40 (Mo. Ct. App. 1902).

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Opinion

ELLISON, J.

This is a proceeding on motion by defendant to quash an execution. The trial court overruled the motion.

H. H. Mudd sued the defendant on a promissory note. Defendant was duly served in due time before the September, 1899, term of the Barton Circuit Court. Defendant appeared at that term and filed his answer and the cause was continued to the January term, 1900. Between these terms the plaintiff, H. H. Mudd, died, and on the first day of said January term his death was suggested and was noted on the record. After-wards, at the same term, an order was entered reviving the case in these words: “Administrator —-- enters appearance and cause revived.” The name of this plaintiff, Robert H. Mudd, representative of deceased, not being at hand at the moment, was by neg[288]*288lect not entered in the record. The case was then afterwards continued to the next term under the general order. At the succeeding term (May, 1900) defendant appeared and the case was continued at his cost. At the succeeding term. (September, 1900) the case was called for trial and judgment rendered for plaintiff, nil ¿licit, defendant refusing to take part in the trial. After the judgment and at the same term, this plaintiff filed motion to correct the record nunc pro tunc, by having the order of revival made in formal language and to show the name of this plaintiff as the party in whose name, as representative of the deceased, the cause was revived and whose name was neglected to be inserted, as above stated. Due notice of this motion was given defendant, but he did not appear at its hearing. The court sustained the motion. No appeal was taken by defendant either from the judgment rendered, or the nunc pro tunc order. Afterwards plaintiff had execution issued on the judgment, and defendant seeks by this proceeding to quash the writ, but, as before stated, was not sustained by the trial court.

On the foregoing facts the trial court’s action on the motion was undoubtedly right and its judgment is accordingly affirmed. We have examined the authorities cited by defendant and do not consider them applicable to the facts of this case. The judgment was manifestly for the right party.

All concur.

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ELLISON, J.

This is a proceeding on motion by defendant to quash an execution. The trial court overruled the motion.

H. H. Mudd sued the defendant on a promissory note. Defendant was duly served in due time before the September, 1899, term of the Barton Circuit Court. Defendant appeared at that term and filed his answer and the cause was continued to the January term, 1900. Between these terms the plaintiff, H. H. Mudd, died, and on the first day of said January term his death was suggested and was noted on the record. After-wards, at the same term, an order was entered reviving the case in these words: “Administrator —-- enters appearance and cause revived.” The name of this plaintiff, Robert H. Mudd, representative of deceased, not being at hand at the moment, was by neg[288]*288lect not entered in the record. The case was then afterwards continued to the next term under the general order. At the succeeding term (May, 1900) defendant appeared and the case was continued at his cost. At the succeeding term. (September, 1900) the case was called for trial and judgment rendered for plaintiff, nil ¿licit, defendant refusing to take part in the trial. After the judgment and at the same term, this plaintiff filed motion to correct the record nunc pro tunc, by having the order of revival made in formal language and to show the name of this plaintiff as the party in whose name, as representative of the deceased, the cause was revived and whose name was neglected to be inserted, as above stated. Due notice of this motion was given defendant, but he did not appear at its hearing. The court sustained the motion. No appeal was taken by defendant either from the judgment rendered, or the nunc pro tunc order. Afterwards plaintiff had execution issued on the judgment, and defendant seeks by this proceeding to quash the writ, but, as before stated, was not sustained by the trial court.

On the foregoing facts the trial court’s action on the motion was undoubtedly right and its judgment is accordingly affirmed. We have examined the authorities cited by defendant and do not consider them applicable to the facts of this case. The judgment was manifestly for the right party.

All concur.

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Bluebook (online)

68 S.W. 1056, 95 Mo. App. 285, 1902 Mo. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mudd-v-walser-moctapp-1902.