Snyder v. Raab

40 Mo. 166

• Court: Supreme Court of Missouri
• Decided: March 15, 1867
• Status: Published

Opinion

Fagg, Judge,

delivered the opinion of the court.

The respondent Snyder instituted suit in the. St. Louis Land Court to recover possession of a tract of land containing fifty acres, and described as being included within a larger tract, a general description of which was given. The defendant (appellant here) answered, denying generally the allegations of the petition. The plaintiff caused the defendant to be subpoenaed as a witness in his behalf, and, failing to appear and testify at the trial, the court, on motion, struck out the answer and proceeded to give judgment for the plaintiff. There was a motion for a new trial and also in arrest of judgment, which being overruled, an appeal was taken to the general term of the St. Louis Circuit Court. The judgment being there affirmed, the case is brought to this court by appeal.

The court was sufficiently authorized, upon the failure of the defendant to appear and testify at the trial, to reject— or, what amounts to the same thing, to strike out — the defendant’s answer—R. C. 1855, p. 1577, § 4. There is nothing to show that there was anything harsh or improper in the action of the court in this matter, and we cannot interfere with it. The plaintiff chooses to stand upon the judgment as it was entered up for him, and the defendant is in no condition to complain. If the plaintiff has a judgment that cannot be executed, the defendant cannot set up that fact here as a ground of reversal.

The judgment is affirmed.

The other judges concur.