Filley v. Walls

4 Mo. 271 | Mo. | 1836

Wash J.

delivered the opinion of the court. '

This was a suit by attachment, commenced by Filley,. before a justice of the peace against one Wallace, in which Walls and Patterson the appellees in this court, were summond as garnishees. On the trial before the justice, Filley got judgment against the garnishees, who appealed to the circuit court, where the judgment of the justice was reversed, and now-Filley has come with his appeal to this court. It appears from the record and the bill of exceptions that on the 29 th of July 1834, the cause was tried before the justice and a. judgment entered up against the garnishees, Walls and Patterson for the sum of forty dollars and forty cents; whereupon they prayed an appeal which was granted. This took place as appears from the record, on the 29th of July 1834. Nei-thev the affidavit nor recognizance are shewn in the bill of exceptions, nor was it necessary to set them out— They are necessary steps in the proceedings before' the justice. From the affidavit copied into the record, it ap.pears that it was not taken until the 4th of August, some pve or sjx ¿ayS after the appeal was granted. The affidavit should be made and the bond or recognizance given, before granting an appeal. When the cause was called in the circuit court, Filley moved the court to dismiss the appeal, for that the same had been granted without affidavit &c. The motion was overruled.

In this we think the circuit court erred, its judgment is therefore reversed, and the cause remanded, with directions to that court, to dismiss the appeal.