Richmond's v. Wardlaw & Pogue

36 Mo. 313

• Court: Supreme Court of Missouri
• Decided: October 15, 1865
• Status: Published

Opinions

Wagner, Judge,

delivered the opinion of the court.

The record in this case shows that the judgment was rendered in the Court of Common Pleas on the 9th day of December, 1863, and the motion for a new trial was not filed till the 16th day of the same month. The statute ( R. C. p. 1286, § 6) provides that “ all motions for new trials, and in arrest of judgment, shall be made within four days after the trial, if the term so. long continue; and if not, then before the end of the term.”

In Williams v. Circuit Court (5 Mo. 524), the Supreme Court says: “ The sum of the whole matter under our laws, then, seems to be this; a party sleeps on his rights until the time allowed him by law to make his motion for a new trial expires; he can no longer claim to make his motion as a matter of right, but he may afterwards suggest to the court that substantial justice has not been done him, and the court may look into the matter or not. If they refuse to grant the party a new trial, no error will lie, because no law authorized him to make the motion after the four days expired; and this is a proper punishment for neglecting to assert his rights in due time.” (5 Mo. 328; 8 id. 686.)

The appellants having no authority for making the motion at the time, cannot be heard in alleging anything against the decision of the court in overruling it.

The other judges concurring,

the judgment is affirmed.

Crane, for plaintiff in error, filed a motion for re-hearing, which was overruled.