Scott v. Smith
Supreme Court of Missouri
Appeal from Jackson Circuit Court. — Hon. James Hibson, Judge. (1) Plaintiff’s motion for a new trial is not provided for by statute, but it is made under the common law rule that trial courts have power to vacate their judgments during the trial term. Todd v. Railway, 33 Mo. App. 114; Nelson v. Ghiselin, 17 Mo. App. 665;. Williams v. Court, 5 Mo. 252; 1 Black on Judgts., sec. 297. (2) It is therefore equitable relief, not relief at law, which is sought.
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Appeal from Jackson Circuit Court. — Hon. James Hibson, Judge. (1) Plaintiff’s motion for a new trial is not provided for by statute, but it is made under the common law rule that trial courts have power to vacate their judgments during the trial term. Todd v. Railway, 33 Mo. App. 114; Nelson v. Ghiselin, 17 Mo. App. 665;. Williams v. Court, 5 Mo. 252; 1 Black on Judgts., sec. 297. (2) It is therefore equitable relief, not relief at law, which is sought. Whether under the statute or common law, equity requires that merits in the case and diligence of party claiming relief be shown before it…
1Opinion of the CourtMacfarlane, J.
This suit is for $5,000 damages for bodily injuries caused by the alleged negligence of defendant. The answer, in addition to a general denial, set up contributory negligence on the part of plaintiff as an affirmative defense. To this plea no reply was filed. The case was set for trial September 30, 1893. Plaintiff failed to appear either in person or by attorney. When the case was called for hearing defendant was ready for trial. No reply having been filed to the plea of contributory negligence, final judgment for failure to prosecute was rendered against plaintiff.
On the fifth of October…
2Cases cited3 opinions
- Rottmann v. SchmuckerSupreme Court of Missouri · 1887
- Nelson v. GhiselinMissouri Court of Appeals · 1885
- Stout v. LewisSupreme Court of Missouri · 1848
3Cited by23 opinions
- Ewart v. PenistonSupreme Court of Missouri · 1911
- Levee District No. 4 of Dunklin County v. SmallMissouri Court of Appeals · 1955
- Savings Trust Co. of St. Louis v. SkainSupreme Court of Missouri · 1939
- Cherry v. CherryMissouri Court of Appeals · 1931
- Oglesby v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1899
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