Kinser v. Shands

Decided March 15, 1873

Supreme Court of Missouri · decided 1873-03-15

Louis Circuit Court. Barns vs. Webster, 16 Mo., 330; Williams vs. Coleman, 51 Mo., 21. The defense is founded on the defendants’ own omission, and is contrary to a fundamental principle, that no man shall take ad vantage of his own wrongi Brooms Leg. Max. 5th Am. Ed. side page 285. The act of the justice, in granting an appeal was entirely without warrant of law, and void, and there is no consideration for the bond : in .any such case, it is void.

Cited by 2 later decisions — most recently July 1885

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1873-03-15

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Adams, Judge,

¶1delivered the opinion of the court.

¶2This was an action on three appeal bonds, which had been given before a justice of the peace. Judgments by default had been rendered by the justice, and the appeals had been taken from these judgments without first filing motions to set aside the defaults, and these appeals were dismissed by the Circuit Court.

¶3An appeal does not lie from a judgment by default rendered by a justice of the peace, until a motion has been made to set aside and overruled. The proceedings of the justice in taking these bonds, and granting the appeals, ^ere coram nonjudicer and utterly void.

¶4 *327The point was ruled by this court in the case of Garnett ys. Rogers, et al., decided at this term.

¶5Judgment affirmed.

Judge Ewing not sitting. The other judges concur.