Small v. Hempstead

7 Mo. 373

• Court: Supreme Court of Missouri
• Decided: May 15, 1842
• Status: Published

Opinion

Opinion of the Court, delivered by

Scott, Judge.

On the 10th day of August, 1825, Charles S. Hempstead obtained judgment against John B. Gilley, by proceedings on an attachment. Afterwards, in July, 1837, David Small, administrator of John B. Gilley, dec. filed his motion to set aside the judgment, for irregularity apparent on the face of the proceedings. This motion was overruled and the cause is brought here by writ of error. No exception was taken and preserved, to*the judgment of the court in overrulling the motion. This court will presume the judgment of the inferior court to be correct, unless it is shown to be otherwise.

The appearance of the defendant in error to the motion to set aside the judgment for irregularity, was no admission of the representative character of the appellant. As the objections to the motion were made on terms, and were not required to be entered of record, it cannot be discovered on what ground the motion was overruled. For ought that appears, it may have been done because the right of the appellant to make it was not established.

Writ dismissed.