Pratt v. Rogers, 5 Mo. 51

Edwards, Judge, delivered the opinion of the court. This was an action of petition in debt, brought by-Rogers against Pratt, on a note. Pleas, non assumpsit and set off. Verdict and judgment for plaintiff. The defendant afterwards, and during t.he same term, moved the court to set aside the judgment and grant a continuance, upop facts set out in two affidavits filed. This motion was overruled.

The first error assigned by the appellant is, “that the circuit court erred in overruling the motion of said appellant, to set aside the judgment rendered in said cau^e, grant a continuance thereof.” No evidence in support of this motion is legally preserved. The ground Up0il which the motion is based should be presented by-saving the evidence mtheease; by incorporating it in bill of exceptions, and praying the court to allow and excep-___" sign the same. When this is done, the bill becomes part of the record.

The entry that a motion was made and the affidavits filed, is a proper act of the clerk; bat the affidavits, the evidence to support the motion, is not matter of record, unless incorporated in a bill of exceptions, allowed and signed by the court, and thus made a

part 0f the record. llore the affidavits are not made a part of the record, and therefore cannot be seen by the court.—Davis v. Hays, 1 M. D. 270; Davidson v. Peck, August term, 1836, 445. the court be-maieriaiissue, such error is not cured'>y our stat-vte ° 60 R1 s’ Tho second error assigned is, that the court erred in gav.ng judgment without a linaing upon all the issues m the cause.

The pleas are non assumpsit and set-off, and the court “finds for the plain tiff the sum of three hundred ue i fifty-two dollax-s and seventeen cents, the debt in the said petition mentioned; and also the sum of one hundred and seventy-nine dollars and fifty cents in damages, by reason of the detention of said debt.” This is a finding of the issue joined on the plea of non assumpsit only; the issue on the plea of set-off is not found. A failure to find the issue joined on an immaterial plea is not error;but lure the issue joined on the plea of set-off is material, and should have been found—Jones and Jones v.

Snider, admr., 3 M. D. 390. But the appellee insists that the' matter is cured by the statute. The statute provides, “that no exception shall be taken to anything unless expressly decided on by the court below”—Revised Code, 522, s. 31. Here the matter was befoi’e the court for examination and decision, and it was not necessary to present it by a motion in arrest of judgment. The failure to find the issue was equivalent to a decision that it was unnecessary to find it.

An imperfect finding of the court, one that may be perfected by directing the attention of the court to it, may be cured by the statute; as in the case of Davidson v. Peck, decided by this court at the August term, 1836; but the statute cannot cure tfse" want, of a finding on a material issue. The judgment of the circuit court will.be reversed ató the cause remanded. Note, McGirk, Judge, did not sit during this term, in consequence of indisposition.