Gluck v. Diebold

1 Mo. App. 265 | Mo. Ct. App. | 1876

Lewis, J.,

delivered the opinion of the court.

Plaintiff obtained judgment, before a justice of the-peace, for $154.35, from which defendants appealed to the: Circuit Court, on a day subsequent, but within ten days, after the judgment. No written notice of the appeal was. served on the plaintiff; but, after the transcript was filed, his attorneys acknowledged service of a notice from defendants to take depositions in the State of Ohio. This acknowledgment included a waiver of the issue of dedimus and of all exceptions as to time. After the lapse of two terms of' the Circuit Court, plaintiff moved for an affirmance of the. justice’s judgment, for want of notice of the appeal. This, motion was sustained.

It is contended by defendants that the acknowledgment, of notice for the taking of depositions in the cause, with the- waiver of dedimus, was a waiver of, and therefore: equivalent to, notice of the appeal. He refers to a number of cases decided by our Supreme Court, wherein the action of the appellees was held to be tantamount to waiver of notice, or to imply an appearance for the general purposes of the suit, which would in itself be a waiver. But in all these cases the acts were done in open court. There was, in each instance, an actual appearance for some purpose-other than that of objecting to the want of notice. I do< not think that the language of the Supreme Court, in any of the opinions, can properly be applied to an act in pais, which is neither a notice within the terms of the statute* nor an express waiver thereof.

In McClurg v. Willard, 5 Watts, 275, the plaintiff was-entitled to notice of a certain special defense. His attorney signed an agreement, in writing, that -a deposition which established that defense, and the talcing of which heí attended, should be read in evidence. It was held that this, was no waiver, and did not dispense with the notice required' bylaw. Chief Justice Gibson said: “Knowledge is certainly not notice; for, though the suitor may know that his adversary is taking precautionary proofs of particular-facts, he has no warrant to anticipate that he will be called on to rebut them. It will, perhaps, be found the safest course, in the end, to go by the plain directions of the rule, instead of attempting to satisfy its exigencies with equivalents.”

I can see no reason why a voluntary acceptance of notice to take depositions should have any greater effect, than a service of the same notice made by the proper officer. In either case the deposition is freed from objection as an ex parte proceeding, and this is all that the notice is-intended to accomplish. Will it be pretended that, if the-plaintiff or his attorney had been regularly served with this-notice, it would have stood in the place of the statutory notice of appeal ? There would be a vast difference between the “knowledge” thus incidentally imparted and the actual appearance of the party in court, submitting himself to its appellate jurisdiction by taking an open part in the' proceedings. If a defendant who had not been summoned in a cause should accept a notice for the taking of depositions, no lawyer would call this equivalent to a voluntary appearance, dispensing with the service of process. The-example may not be strictly analogous, but it is nearly enough so to direct attention to the principles involved.

Acceptance of notice for depositions and waiver of dedimus constitute a professional courtesy in daily practice among the members of our bar. It would be a sad check upon the impulses by which this is prompted to establish a rule-whose effect would convert an attorney’s courtesy into a, surrender of lights not at all within his contemplation. the judgment is affirmed-in affirming the judgment, but not in the views expressed as to the acceptance of notice to take ■depositions with the waiver of dedimus. This, he thinks, if done at the term to which the appeal was returnable, would amount to a waiver of notice.

Judge Bakewell concurring, Judge Gantt concurs