Barkwell Co. v. Carlisle Comm. Co.

ON REHEARING. Plaintiff has called our attention to the case of Bussiere's Administrator v. Sayman, 256 Mo. 303, 315, where it was said of plaintiffs who were situated similarly to the plaintiff in the case at bar at the time the court sustained defendant's motion for a new trial and petition for review:

"Two remedies it would seem were open to appellant (plaintiff) here: (a) he might have stood mute in a subsequent call of the case, and suffering a dismissal thereof, have appealed (Harkness v. Jarvis, 182 Mo. 231); or (b) saving the point by a proper exception and term bill if need arose, appealed if he lost the whole case."

But plaintiff herein did not follow the course pointed out in that case but, without taking any action whatever save to merely except to the ruling of the court, he appealed the case here on the action of the court in setting aside the judgment, and allowed several terms of court to go by before filing his motion to reinstate the default judgment. There being nothing to carry the case over, the court had no right after the lapse of the terms to set aside the order to set aside the default judgment (State v. Fort, 178 Mo. 518), and the motion to set aside the order dismissing plaintiff's petition and to reinstate the judgment not setting up any good grounds for the action prayed, was properly overruled.

The judgment is affirmed. All concur.