8 Mo. 45 | Mo. | 1843
delivered the opinion of the Court.
Cason brought an action of debt against the defendants in a justice’s court, where, on a trial, the jury render a verdict against the plaintiff.
On the second trial, the parties appeared, and submitted the cause to the justice, who rendered a judgment for the plaintiff, from which the defendant appealed to the Circuit Court, where, on a trial de novo, the plaintiff again obtained a verdict.
The defendants then moved in arrest of judgment, for the reason that the justice had granted a new trial to the plaintiff. This motion was sustained, and the suit was dismissed.
It is a settled principle, that a justice of the peace cannot grant a new trial after a verdict by a jury.— Downing vs. Garner, 1 Mo. Rep., 751.
In Rutherford vs. Winn, 3 Mo. Rep., 14, this Court held, that in a justices’ court, the effect of a judgment will be given to the verdict of a jury so soon as the verdict is entered on the justice’s docket. In that case it was held, that the appeal should be taken within ten days from the entering of the verdict.
The justice having no power over the verdict, his proceedings subsequent to its rendition were coram non judice, and consequently void. It was insisted, that the cases referred to were decided under the revised laws of 1825, which were less indulgent to proceedings in justices’ courts than the present statute, which directs, art. 8, sec. 8, that, upon the return of the justice being filed in the clerk’s oifice, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without regarding any error, defect, or other imperfection of the justice. It will not be maintained, that under this section the bare filing of the papers will give the court possession of the cause, without regard to the legality of the steps of the party by whom they are filed.
The law requires the appeal to be taken in ten days. Would the filing of the papers in the Circuit Court, any length of time after a trial before the justice, give the Circuit Court possession of the cause ?
A party has a right to an appeal, and if his appeal is properly taken, under the section above referred to, he is entitled to a trial de novo in the Circuit Court.
As the transcript of the justice was before the Circuit Court, and as, from its face, it appeared that the verdict first given, which, as we have seen, was equivalent to a judgment, was in full force, notwithstanding there may have been a trial in the Circuit Court, yet when that court, at any time, became satisfied that it was improperly entertaining a cause, it was competent to dismiss it, as was done, and leave the first judgment undisturbed, to be enforced by the party in whose favor it was rendered.
Judgment affirmed.
