State ex rel. Hay v. Harper

Missouri Court of Appeals

State ex rel. Hay v. Harper

56 Mo. App. 611, 1894 Mo. App. LEXIS 121

CourtMissouri Court of Appeals

DecidedFebruary 19, 1894

StatusPublished

Cited by4 cases

This text of 56 Mo. App. 611 (State ex rel. Hay v. Harper) 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

State ex rel. Hay v. Harper, 56 Mo. App. 611, 1894 Mo. App. LEXIS 121 (Mo. Ct. App. 1894).

Pincite

Opinion

Ellison, J.

— Defendant was appointed a special commissioner in partition for the purpose of making a sale of some lands. He sold the lands and failed to pay over to plaintiff’s intestate the amount due him. An action was instituted on his bond as such commissioner and judgment rendered for the plaintiff. The judgment was “for the said sum of $549.70, the said damages assessed aforesaid with interest thereon from this day at the rate of five per cent., per month, together with costs of suit.” An appeal was taken from this judgment, one of the alleged errors relied upon for reversal of the judgment being the allowance of the interest as specified in the judgment. This court affirmed the judgment '(54 Mo. App. 286). Afterwards, in July, 1893, after the lapse of several terms, defendant begun the present proceedings by motion in the trial court to correct and reform the aforesaid judgment by striking out that portion award[614]*614ing five per cent, interest. This motion was overruled and defendant has again appealed to this court.

The question presented is, can defendant, after the lapse of the term at which the judgment against him was rendered, have such judgment corrected in the manner indicated? We think not. The trial court in construing sections 4965 and 7188, Revised Statutes, 1889, gave judgment in behalf of plaintiff and against the defendant for the interest aforesaid, and though it be conceded that such judgment was the result of an improper construction of the statute, yet it was an erroneous ruling or judgment and like other errors of law which trial courts may commit in the trial of causes, should be corrected by proper appellate procedure. See Jones v. Hart, 60 Mo. 351, and Woodridge v. Quinn, 70 Mo. 370.

It is unnecessary to consider other .suggestions made by defendant, since conceding to his contention the right and duty of an appellate court to re-examine and correct an erroneous ruling which it may have made on a former appeal in the same case, yet in order to do so the case must, of course, be properly brought to the court. In this pase the judgment was- affirmed by this court which had the effect of finally determining and closing all matters pertaining to any errors committed by the trial court. If the cause' had been remanded for another trial and again brought here by defendant in accordance with the proper procedure for such purposes, his point as to the right and duty of the court to re-examine and correct rulings made on the former appeal would be in such shape as to be passed upon.

The judgment is affirmed.

All concur.

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Ellison, J.

— Defendant was appointed a special commissioner in partition for the purpose of making a sale of some lands. He sold the lands and failed to pay over to plaintiff’s intestate the amount due him. An action was instituted on his bond as such commissioner and judgment rendered for the plaintiff. The judgment was “for the said sum of $549.70, the said damages assessed aforesaid with interest thereon from this day at the rate of five per cent., per month, together with costs of suit.” An appeal was taken from this judgment, one of the alleged errors relied upon for reversal of the judgment being the allowance of the interest as specified in the judgment. This court affirmed the judgment '(54 Mo. App. 286). Afterwards, in July, 1893, after the lapse of several terms, defendant begun the present proceedings by motion in the trial court to correct and reform the aforesaid judgment by striking out that portion award[614]*614ing five per cent, interest. This motion was overruled and defendant has again appealed to this court.

The question presented is, can defendant, after the lapse of the term at which the judgment against him was rendered, have such judgment corrected in the manner indicated? We think not. The trial court in construing sections 4965 and 7188, Revised Statutes, 1889, gave judgment in behalf of plaintiff and against the defendant for the interest aforesaid, and though it be conceded that such judgment was the result of an improper construction of the statute, yet it was an erroneous ruling or judgment and like other errors of law which trial courts may commit in the trial of causes, should be corrected by proper appellate procedure. See Jones v. Hart, 60 Mo. 351, and Woodridge v. Quinn, 70 Mo. 370.

It is unnecessary to consider other .suggestions made by defendant, since conceding to his contention the right and duty of an appellate court to re-examine and correct an erroneous ruling which it may have made on a former appeal in the same case, yet in order to do so the case must, of course, be properly brought to the court. In this pase the judgment was- affirmed by this court which had the effect of finally determining and closing all matters pertaining to any errors committed by the trial court. If the cause' had been remanded for another trial and again brought here by defendant in accordance with the proper procedure for such purposes, his point as to the right and duty of the court to re-examine and correct rulings made on the former appeal would be in such shape as to be passed upon.

The judgment is affirmed.

All concur.

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56 Mo. App. 611, 1894 Mo. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hay-v-harper-moctapp-1894.

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