Schroeder v. Miller

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff recovered a judgment by default and final judgment against the defendant, on a promissory note executed by the latter, on April 5, 1888, being the third day of the return term, and caused execution to be issued on the judgment forthwith.

On April 10, the defendant filed his motion to vacate the judgment, and quash the execution, supporting his motion by affidavits to the effect that the plaintiff, in consideration of part payment made to him after the institution of the suit, had agreed not to prosecute the suit, but to dismiss it at his own costs. The defendant filed a counter affidavit denying the fact.

The court overruled the motion, as the bill of exceptions states, because it held itself bound by its own rule 9, which provides :

“No agreement, understanding, or stipulation of parties or attorneys concerning practice or proceedings in a pending cause, will be enforced therein unless in writing filed therein or made in open court.”

The defendant thereupon sued out this writ of error.

The reason assigned by the court for its action was not decisive. The rule is unquestionably a wise one, as it saves the court the often difficult task of deciding controverted questions of fact, relating to proceedings before it, upon ex parte affidavits. At the same time the court might have, if so inclined, legally vacated the judgment at any time during the term, notwithstanding its own rule, if the purposes of justice required it. Saulsbury v. Alexander, 1 Mo. App. 209.

The reason for the court’s action, however, is immaterial as such action itself was clearly right. The defendant does not pretend to claim, that he had any defense whatever to the note, or that the judgment is excessive. The facts stated in the defendant’s affidavit, if true, constituted no defense -whatever, Bircher v. Payne, 7 Mo. 462; Bond v. Worley, 26 Mo. 253; Bridge v. Tierman, 36 Mo. 439.

Judgment affirmed.

All the judges concur.