Smith v. Best , 42 Mo. 185 ( 1868 )

Fagg, Judge,

delivered the opinion of the court.

This cause is brought here by appeal from the Fifth District Court. The suit was instituted in the Buchanan Court of Common Pleas, in August, 1866, and made returnable to the September term of that court.

On the third day of the term, the respondent having failed to enter his appearance and plead to the action, a final judgment was entered against him. A motion to set aside this judgment and permit him to answer was filed within the proper time, but con-tinned over until the next term. The record shows that during that term, and on the 8th day of January, 1867, this motion was withdrawn; and on the 12th day of the same month another motion was filed, asking the court, for the irregularities therein set forth, to set aside the judgment, and permit respondent to answer the plaintiff’s petition. This motion was sustained, and the answer duly filed. At a subsequent term of the court, the case being called for trial, the appellant (plaintiff below) refused to proceed further, and the cause was dismissed for want of prosecution.

Upon a careful examination of the former decision of this court upon the question of practice presented by this record, it is clear that, if a mere error or mistake in entering up a judgment is sought to be corrected, it can only be done by motion, filed within the proper time, and within the term at which the judgment is recorded. Such motion may, however, be continued over for cause, and determined at a subsequent term. In this case there was a continuance, and it would have been consistent with the rules of practice heretofore recognized by this court for the Circuit Court to have determined the same at the next term. This motion, however, seems to have been abandoned, and need not be further noticed. The one subsequently filed, on the 12th day of January, presents really the only question to be examined in this case. It is conceded that it was separate from and wholly independent of the former motion, and the reasons upon which it is based, if true, were altogether sufficient to justify the action of the court in sustaining it. It alleges that the suit instituted by the appellant was not founded upon a bond, bill, or note, for the direct payment of money; that in point of fact it was simply an action upon account for work and labor done, and therefore, according to the law regulating practice in civil cases, the respondent was not compelled to answer or otherwise plead to the action before the sixth day of the term. It appears from the petition that the appellant’s claim amounted altogether to the sum of three hundred and fourteen dollars and three cents, and consisted of •small amounts alleged to be due, and owing by a certain firm (of which the respondent was a member), to a large number of persons, for work and labor performed in the construction of a railroad; that there was in each case written evidence of this indebtedness-executed by the firm, and transferred by assignment to the-appellant, and that he was the legal and equitable owner and holder of the same. These papers were all attached to and filed with the petition. It is not material to inquire whether these evidences of indebtedness, as they are called by the pleader, are, in point of fact, notes for the direct payment of money or not. They are not so treated by the petition, and are not declared upon as promises to pay, but referred to simply as evidence of the amounts due to the several persons by whom they were assigned on account of the work and labor alleged to have been performed. The real cause of action, as set out in the petition, is the work and labor done, with a separate statement of the amount of each account, coupled in every case with a reference to these papers in the following form: ‘ ‘ as will more fully appear by the evidence of indebtedness herewith filed,” etc. Having elected to declare upon the original cause of action in this manner, the appellant cannot complain of the enforcement of a rule of practice fixed by the law itself, and which the courts cannot disregard if they would. It follows, from this view of the petition, that the respondent (defendant below) had six days within which to plead to the action, and any judgment rendered before the expiration of that time was irregular, and cannot be sustained. In the case of Brewer v. Dinwiddie, 25 Mo. 351, it was held that, when there is any irregularity in the proceedings, the court will, on motion at a subsequent term, the irregularity being shown to its satisfaction, set the judgment aside, or do whatever the justice of the case may require. The cases of Doane v. Holly, 27 Mo. 256; Harbor v. Pacific R.R. Co., 32 Mo. 423; Lawther v. Agee, 34 Mo. 372, and all the cases therein cited, concur in sustaining the position that the motion under consideration was the proper remedy for the irregularity complained of, and that it was filed in proper time.

The judgment must therefore be affirmed.

The other judges concur.