
    M. F. Taylor, Trustee of Elizabeth A. Genail, Appellant, v. Francis Genail, Sr., Respondent.
    April 19, 1881.
    1. A motion for a new trial filed out of time, and without leave of court, will not carry the case over.
    2. When a motion for a new trial is permitted to be filed nunc pro tunc and then overruled, the appellate court will presume that it was overruled as filed out of time, and will not examine the ease on its merits.
    
      Appeal from the St. Louis County Circuit Court, Edwards, J.
    
      Affirmed.
    
    M. E. Taylor, pro se.
    
    
      W. E. Broadhead, for the respondent.
   Bakewell, J.,

delivered the opinion of the court.

In this case it appears from the record that the motion for a new trial was filed on May 12, 1879, and the judgment entered on February 5th. On some day in 1880, but what day does not appéar, appellant filed a motion praying that the date of the filing of the motion for a new trial be changed, and that it be entered as of February 7, 1879. This motion is accompanied by an affidavit which sets forth that appellant’s attorney was a member of the Legislature and was absent in consequence of his duties as such member, and that he had an understanding with the court that this cause, and all causes in which he was interested, should be passed, and not acted upon in his absence. This motion was sustained. Afterwards, on February 18,1880, the court overruled the motion for a new trial.

The terms of the Circuit Court of St. Louis County are the second Mondays of January and June. This motion for a new trial was not filed within four days, as the statute requires. It does not even appear that it was filed during the term at which the judgment was rendered. At the second term after judgment an application, founded seemingly upon a misapprehension of what is meant by a nunc pro tunc entry, was made by appellant. This can be regarded only as an application for leave to do at the January term, 1880 (not the next succeeding term), what the statute requires to be done at the same term and within four days of the judgment. It does not appear how the court could grant this leave after the term had expired. Counsel for appellant contends that the motion for a new trial carried the case over. But a motion for a new trial, filed, without leave of court, after four clays after the date of the judgment, would have no such effect. And as to this motion, it does not appear to have been filed during the term. How, then, can we say that the trial court committed error in overruling the motion for a new trial? The presumption, if we should find error in examining the case on the merits, would be that the trial court overruled the motion for a new trial as having improvidently permitted the motion to be filed at the January term, 1880.

According to the well-established rule, the judgment must be affirmed, as nothing appears from which we can see that the court committed error in overruling the motion for a new trial.

The judgment is affirmed.

All the judges concur.  