Stupp v. Holmes

CüRRiBR, Judge, delivered tbe opinion of tbe court. This suit was brought to recover tbe balance of an account. Tbe defendant filed a set-off, and the controversy arises mainly upon that branch of the case. At tbe trial, tbe plaintiffs having given evidence in support of their claim, tbe defendant introduced evidence tending to show tbe existence of a contract between tbe parties embracing tbe subject of tbe suit. Tbe defendant’s' counsel thereupon objected to tbe introduction by tbe plaintiffs of parol evidence of tbe terms of tbe supposed contract. Tbe objection was overruled, and tbe defendant excepted. This was tbe only objection taken to tbe introduction of evidence during tbe whole progress of tbe trial. It was made while tbe defendant.was putting in bis side of tbe ease, and was consequently directed to no evidence then and at that [92] time submitted for tbe consideration of the court, on the part of the plaintiffs. The plaintiffs had previously closed their case, and evidence was being put in on behalf of the defendant. The trial proceeded, and the defendant, at considerable length and without restraint, put' in parol evidence covering the whole controversy. The plaintiffs’ evidence, in rebuttal, went in without objection. I fail to see that the defendant has any ground of complaint because of the ruling of the court upon the admissibility of evidence. No instructions were asked or given on either side, and the plaintiffs recovered. The defendant thereupon moved for a new trial, filing with his motion an affidavit to the effect that the defendant was an infant under the age of twenty-one .years at the time he appeared and entered upon his defense. He appeared by attorney, and the court was asked to set aside the judgment. The motion was overruled. It is true that a judgment against an infant defendant, who appears by attorney, may be set aside on motion. (Powell v. Gott, 13 Mo. 459 ; Townsend v. Cox, 45 Mo. 401.) But the fact that the judgment sought to be set aside was against an infant defendant thus appearing must be shown. These facts are not shown in the case before us. They are not even alleged in the motion. It is stated that he appeared by attorney, and that he was under twenty-one years of age when his appearance was entered. He first appeared November 4, 1868. The judgment was not rendered till November 15,1870, more than two years after defendant’s first appearance. For aught the record shows, he may have litigated the case for two years after he came of full age, and before the judgment was rendered against him. In a word, it is not pretended that the judgment was rendered against a party who was an infant at the date of its rendition. The judgment will be affirmed. The other judges concur.