75 Mo. 430 | Mo. | 1882
It appears from the record that tbis suit was originally commenced before a justice of the peace in Yer-
The controlling question presented by this record is the propriety of the ruling of the circuit court in its judgment sustaining said motion for the affirmance of said judgment. This ruling involves the construction of section 22, 2 Wagner’s Statutes, 850, being section 3056 of the Ne-vision of 1879, which provides: “If the appellant fail to give notice of his appeal, when such notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof; or, at his instance, shall be continued, as a matter of course, until the succeeding term, at the cost of the appellant, but no appeal shall be dismissed for want of such notice.” By section 21 same statute it is provided that when the appeal is not allowed on the same day when the judgment is rendered, notice is required to be served on the appellee ten days before the term at which the cause is to be determined, and by the 20th section of the same-act “ all appeals allowed ten days before the first day of the term of the appellate court, next after, appeal allowed, shall be determined at such term, unless continued for cause.”
This precise question has been decided by this court adversely to the above ruling of the circuit court in this case. In Nay v. Hann. & St. Jo. R. R. Co., 51 Mo. 575, the court, after quoting and referring to the above sections, proceeds to remark: “ Erom these provisions of the statute it is apparent that the appellee can only demand a trial at the first term, when he shall have entered his appearance on or before the second day of the term. If he fails to enter his appearance as indicated, the case cannot be tried
The fact that the defendant, after the transcript of the justice in said cause was filed with the clerk of the circuit court, caused notice of the taking of depositions to be served on the plaintiffs; añd the fact that plaintiffs waived the formal service of the notice by accepting service thereof, in writing; .and the fact that said depositions were taken, and that plaintiffs appeared and cross-examined the witnesses, and that said depositions were filed with the clerk of said circuit court before the return day of said appeal, it may be conceded, may so alter the case as to make the cause triable upon its merits at the first term; but, still, that would not authorize an affirmance of the judgment of the justice at that term, on the ground of a failure to prosecute said appeal.
The views herein expressed are not in conflict with