Merriam v. St. Louis, Cape Girardeau & Ft. Smith Railway Co.

[447] ON MOTION TO SET ASIDE DISMISSAL OF APPEAL. Per Curiam. — The motion to dismiss the appeal of the defendant railway company was sustained upon the authority of the judgment in Greeley v. Railroad, 123 Mo. 157 (27 S. W. Rep. 614), it being considered that the principles announced therein governed the appeal from the order in the present case appointing Mr. Klotz as a receiver of the railway property (or rather from the refusal of the court to set aside that order), in the circumstances exhibited,, in the various opinions rendered in the course of the litigation between these parties. State ex rel. Klotz v. Ross (1893), 118 Mo. 23; State ex rel. Merriam v. Ross (1894), 122 Mo. 435 (25 S. W. Rep. 947). The court did not regard the facts presented by the two appeals as so essentially different as to prevent the proper application of the judgment upon the former appeal to the latter. In view of the full consideration which the question, raised by the motion to dismiss in 'the case at bar, had received at the same term, in the Greeley case, it was not thought needful to repeat the grounds of the ruling. Appellant has since filed a motion to set aside the order of dismissal, claiming, under section 2309 (R. S. 1889), that it was entitled to have a written statement of the opinion of the court (which this memorandum is now intended to afford); and that it should have been accorded an oral argument upon the motion to dismiss. The latter contention is met by rule 3 of the court (120 Mo. 743); and, moreover, we are'satisfied that no prejudice resulted to appellant on that account for the views of its counsel were very fully and ably presented by printed arguments. [448] The appellant has also submitted, on the pending motion, some further suggestions to sustain the appeal; but we are all of the opinion that they do not furnish sufficient reasons to change the. conclusion heretofore announced. The motion to set aside the order of dismissal of the appeal is, hence, overruled, all the judges concurring.