58 Mo. App. 427 | Mo. Ct. App. | 1894
This action originated before a justice of the peace, where the plaintiff had judgment. On appeal the judgment was affirmed for failure to give notice of the appeal. This ruling of the circuit court
The facts are these: The suit was brought before a justice of the peace in Macon county. The judgment there was entered on the thirty-first day of January, 1893, and an appeal granted on the sixth day of February following. The transcript was filed in the office of the clerk of the circuit court of Macon county on the twenty-second day of February. The next regular term of that court was held in April. On the first day of that term, to wit, April 17, 1893, the defendant, pursuant to notice, filed an application for a change of venue. The application was sustained, and the venue of the cause was changed to the circuit court of Shelby county. The next term of the latter court, following the transfer of the case, was held in October. At that term the plaintiff appeared and moved the court to affirm the judgment for want of notice of appeal. The court sustained the motion, it appearing that the notice had not been given.
The contention that the October term of the circuit court of Shelby county was the first term at which th'e cause was properly triable, is nottenable. The statute(E. S. 1889, sec. 6341) provides that “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.” The return'term of the appeal was the April term of the Macon county circuit court, and the notice of the appeal should have been given for that term. The plaintiff was entitled to this notice, and the fact that the defendant intended to, and did, take a change of venue at that term in nowise relieved it of this'legal duty. The second term after the appeal was the October term of the Shelby county circuit court. The defendant being still in default as to the notice, it became the
Of this latter fact we find no record evidence. We have before us the original transcript, of the proceedings in the Macon circuit court, and it contains nothing-tending to show this. The cover to the transcript, after giving the style of the cause, contains as the following:
“Appeahaeoes:
“Bert D. Nortoni, New Cambria, Mo., for Plaintiff.
“Ben Eli Guthrie, Macon, Mo., for Defendant.”
This can not be accepted as a part of the record proper. It is at best a mere statement or recital by the clerk, and it does not even purport to be a part of the record.
Affidavits were offered on both sides as to the fact of an actual appearance by the plaintiff at the time the -change of venue was granted. The court decided the issue adversely to the defendant, and that finding, under the circumstances, we do not feel authorized to review. All of the proceedings were before the same judge, and we must assume that he had some personal recollection of what actually occurred.
The service of the notice for the change of venue could not take the place of the notice of the appeal. The notice of the change of venue undoubtedly conveyed to the plaintiff the information that the appeal was pending, but “the notice of appeal is a thing apart from the actual knowledge which a party may . have, that an appeal has been taken, and great particularity is required in such notices.” Hammond v. Kroff, 36
Finding no error in the record, the judgment of the circuit court will be affirmed.