Weber v. Schmeisser, 7 Mo. 600

Opinion of the Court, delivered by Scott, Judge. This was an action commenced by the appellee against the appellant in a justices’ court, on an account. An appeal was taken to the court of common pleas, where the appellee had judgment, from which an appeal has been taken to this court. After the trial, in the court below, the appellant moved to set aside the judgment, and filed an affidavit in support of his motion, which set forth causes why he and liis counsel were not in court when the cause was tried. The affidavit further alleged that the party had a just defence to the action.

The affidavit of the appellant appears contradicted by the record. This is never allowable : a party cannot gainsay the cord. The entry in the record is, that the parties appeared by their attorneys respectively, and neither party requiring a jury, all and singular the premises being seen and heard, and by the court here fully unders ood, the court doth find, &c. That it appears the party was present by his attorney, dispensed with a jury, and submitted his cause to the court. These facts cannot be contradicted. ^ heard relation to which he is tyíhe'reconl. Judgment affirmed.