28 Mo. App. 316 | Mo. Ct. App. | 1887
-This is an action of forcible entry and detainer, instituted in a justice’s court. On the-twenty-fourth day of May, 1886, the cause was tried in the justice’s court, resulting in a verdict and judgment for defendants. On the twenty-fifth day of the same month the plaintiff: perfected his appeal from this judgment to the circuit court. The transcript of this proceeding in the justice’s court was filed in the office of the-circuit clerk on the twenty-eighth day of May, 1886, within six days after the rendition of the judgment by the justice. It appears that this was during the term of the circuit court. In January, 1887, at a term of the said circuit court, the defendants filed a motion to affirm the judgment of the justice, for the reasons assigned in the motion, that the plaintiff, appellant, had failed to
I. As to the second ground alleged in the motion, it is sufficient to say, the fact shown by the record refutes the allegation. The judgment was rendered on the .twenty-fourth day of May, 1886, and the transcript was filed in the clerk’s office on the twenty-eighth day of May, 1886. Reliance for the first ground alleged in the motion for affirmance, we presume, is placed upon the provisions of article 9, chapter 44, of Revised Statutes, concerning appeals generally in justices’ courts. By section 3055 of this article it is provided, that if an appeal be not taken on the day on which judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term before the cause is to be determined, with a notice, in writing, stating the fact that an appeal has been taken, etc. Then, by section 3057, it is provided that if the appellant fail to give :such notice, at least ten days before the second term of th*e appellate court, after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed, at the option of the appellant.
But it is claimed by the appellant that the case at bar is governed solely by the provisions of article 2, chapter 33, concerning forcible entry and detainer, under which no such notice is required. Section 2468 of this statute provides that: “Any party aggrieved by the. judgment of the justice of the peace, in any case of forcible entry and detainer, or unlawful detainer, except a judgment of non-suit, may appeal therefrom to the circuit court.” Section , 2469 provides that no appeal shall -be allowed, unless the same be applied for, and an affi
It follows that the judgment of the circuit court is-reversed and the cause remanded.