Carrington v. Hancock

Rombauer, J., delivered the opinion of the court. This cause has been fully and ably argued before us on several points, but owing to the peculiar state of the record, the only point we are at liberty to consider is whether the petition states facts sufficient to constitute a cause of action. It appears by the transcript that a motion in arrest of judgment was filed and overruled prior to filing any motion for a new trial. The case of McComas v. The State (11 Mo. 116), decides that a motion for new trial comes too late after motion in arrest, as the latter presupposes the verdict to be right. This rule was subsequently modified in Farmers Bank v. Bayliss (41 Mo. 275, 286), to the extent that where both motions are filed [300] on tlie same day, and the motion for new trial is first disposed of. the latter motion may be considered on appeal, but the rule was re-affirmed to the extent that after the overruling of a motion in arrest it is too late to file a motion for new trial, and such is still the law in this state. It has been ably argued by counsel for the appellants that it is illogical to hold that parties intended to waive errors in the trial by a motion in arrest which expressly asserts such errors, and is in substance both a motion for new trial and in arrest, as the present motion. Plausible as this argument may seem, we are bound to follow the last controlling decision of the supreme court, and are not at liberty to explain it away because, perchance in our opinion, it may not rest on a logical foundation. 'No rule which is not certain can be just. The action is one to recover a balance claimed to be due to the plaintiffs from the defendants on a running account. The petition, states that ‘ ‘ from the-day of-, 1881, up to and after the ninth day of November, 1882, the said plaintiffs bought and sold for the defendants various lots of grain, etc., all of which will fully appear by the itemized account of said dealing which is herewith filed.” The appellants claim that the petition is insufficient in not averring that the grain was bought and sold at the defendants’ request. This defect, if any it be, is not the omission of an essential averment, but at most its inartificial statement, and is cured by verdict. Coal Company v. Brewing Co., 20 Mo. App. 16, 19. The judgment is affirmed. All the judges concur.