Holder v. Chidister

ROBERTSON, P. J. Plaintiff obtained a judgment by default against the defendant in the circuit court, which, on the fourth day thereafter and during the same term of court, the defendant moved to set aside, accompanying his motion by an affidavit and his proposed answer. Upon the hearing of defendant’s motion, supported by affidavits and oral testimony, the court promptly sustained the same and the plaintiff has appealed. Since it has been held by the Supreme Court that Section 2038, Revised Statutes of 1909, does not authorize an appeal in a case of this kind (Crossland v. Admire, 118 Mo. 87, 24 S. W. 154; Breed v. Hobart, 187 Mo. 140, 86 S. W. 108), it becomes our duty to dismiss the appeal herein, which is accordingly done; but, in doing so, we come in conflict with the Kansas City Court of Appeals in the case of Icing Co. v. Kemper, 166 Mo. App. 613, 149 S. W. 1163, and in Miller v. Crawford, 140 Mo. App. 711, 126 S. W. 984, and shall, therefore, follow the precedent established by the St. Louis Court of Appeals in the case of Bussiere v. Sayman, 171 Mo. App. 11, 153 S. W. 507, and certify this case to the Supreme Court. It is so ordered. Sturgis and Farrington, JJ., concur.