# American Legion Phillips Post v. City of Malden

> Missouri Court of Appeals · November 25, 1959 · 330 S.W.2d 189

URL: https://www.frixlaw.com/law-library/cases/9671769

## Case

- **Full name:** AMERICAN LEGION PHILLIPS POST, Harold Blades, Ira Blades, Earl Kizer, Charley Hawk and May Hawk, George O. Schrader, M. D. Burge, W. F. Barton and Vernoy A. East, Appellants, v. CITY OF MALDEN, a Municipal Corporation, Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** November 25, 1959
- **Citations:** 330 S.W.2d 189; 1959 Mo. App. LEXIS 442
- **Precedential status:** Published
- **Opinion:** On rehearing by Ruark
- **Judges:** Ruark, Stone, McDowell
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671769

## Opinion text

On Motion for Rehearing
RUARK, Judge.
Respondent has filed motion for rehearing based upon the fact that since our *193 opinion was handed down counsel have examined the files of the Malden Merit and have discovered that the publication was actually made for four consecutive insertions. This comes after the fact of (only) three publications was charged in the petition, admitted in the answer, proved in the evidence by Exhibit A, considered by the trial court in passing on the case, and briefed and argued in this court by both parties on that conceded fact.
We know of no law or rule of procedure which would permit the court to send the case back now upon the ground of newly discovered evidence. There are sev-eral reasons why we may not do so, but a sufficient one is that a case is finished when it has been fairly tried on the facts which the parties make available to the court and is finally disposed of in the appellate court on the facts and theory presented. It then becomes “a closed book binding on the parties to the suit.” Shepard v. Shepard, 353 Mo. 1057 , 186 S.W.2d 472, 477 . Otherwise there would be no end to litigation. The motion is overruled.
STONE, P. J., and McDOWELL, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671769. Public record. Not legal advice.