Osborne & Co. v. Farmers' Machine Co. , 114 Mo. 579 ( 1893 )

Btjrgess, J.

This is a .suit by attachment commenced m the circuit court of Jasper county, taken by change of venue to the circuit court of Newton county, where it was tried on a plea in abatement, on the twenty-fourth day of May, 1890, and judgment was rendered for plaintiff sustaining the attachment.

On May 26, 1890, defendant filed its motion for a new trial which was overruled June 30,1890. On July 9, 1890, defendant filed affidavit for an appeal which was granted and defendant allowed sixty days in which to file a bill of exceptions. On the thirteenth day of November, 1890, the cause was tried on its merits and judgments rendered for plaintiffs. And on the third day of December 1890, defendant filed its affidavit for appeal from the judgment on the plea in abatement which was allowed.

There was but the one bill of exceptions filed, which was filed September 5, 1890,.and no appeal was taken from the judgment on the merits.

Under section 562, Revised Statutes, 1889, defendant could not appeal from the judgment against it on the plea in abatement, and while it properly saved its exceptions, and filed its bill of exceptions, it never did appeal from the judgment on the merits; and this was absolutely necessary in order to get the case before this court for review of the trial and judgment on the plea in abatement. Metzenberger v. Keil, 31 Mo. App. 130; Mackey v. Hyatt, 42 Mo. App. 443; State ex rel. v. Smith, 105 Mo. 6; Fagley v. Vail, 11 Mo. App. 601; Duncan v. Forgey, 25 Mo. App. 310.

Section 562, Revised Statutes, 1889, supra, expressly provides that plaintiff in an attachment proceeding may appeal from the judgment on a plea in abatement against him, but it contains no provision authorizing the defendant to appeal from a like judgment against him on a plea in abatement sustaining the attachment. It follows that as no appeal was taken from the final judgment that this appeal must be dismissed. Appeal dismissed.

All of this division concur.