101 Mo. 459 | Mo. | 1890
At the May term, 1887, of the county court of Johnson county, and on the nineteenth of May, 1887, a final judgment was rendered by said court establishing a public road petitioned for by respondents over the objections of appellants. In vacation after said term of said court, and on the twenty-eighth of May, 1887, the appellants filed affidavit and bond for, and were granted, an appeal from said judgment to the circuit court of said county, and the transcript was filed in the office of the clerk of said circuit court on the first day of June, 1887. The' June term of said court commenced on the thirteenth of that month.
Appeals from judgments of county courts are governed by the law prescribed for appeals from judgments of justices of the peace. R. S. 1879, sec. 1210. The appeal having been allowed ten days before the June term of said circuit court was returnable to and triable at said term. R. S. 1879, sec. 3054. But not having been allowed on the same day the judgment was rendered, the respondents were entitled to ten days’ notice of the appeal, before said term. R. S. 1879, sec. 3055. The appellant failed to give such notice. The respondents could have waived the notice, and had the case tried at that term, however, by entering their appearance therein on or before the second day of said term. Sec. 3056. The record does not show that they did so, or that anything was done in the case at that term. It must have been continued to the next ( October) term by the court as of course not being otherwise disposed of. • The appellant also failed to give ten days’ notice of such appeal before the October term which •-was the second term after the appeal was taken, and respondents at that term filed their motion asking the affirmance of the judgment of the county court for want of
The circuit court was authorized by the provisions of section 3057, Revised Statutes, 1879, to affirm the judgment of the county court on the motion unless the notice of appeal required by the statute, and which was not given, was waived. The appellant on the hearing of the motion contended that it was waived by .an appearance of the respondents at the June term, and introduced evidence tending to show that upon the bar docket of that term opposite the names of respondents at the place where .the case was docketed, in the column headed attorneys, Mr. Robertson had written the name Houts — -Robertson, either before or at some time during the term, and upon this act the appellants rely as an appearance.
The appearance of a party by attorney must appear in some way upon the record. Weeks on Attorneys, sec. 193, p. 339. But this is surely the first time that it was ever suggested that the bar docket provided by the clerk for the convenience of the attorneys in the conduct of their professional business in the courts was to be regarded as a record of any proceeding had in court, in a case. But even if it could be so considered the mere entry by an attorney of his name as an attorney on the docket could have no other effect, than tend to show that he was employed in the case, and not that he thereby intended to enter the appearance of his client in the case. That the attorney did not so intend in this case clearly appears from his, and the other, evidence offered by appellants on the hearing of the motion. The judgment is affirmed.