48 Mo. App. 578 | Mo. Ct. App. | 1892
The only question presented by this record is the sufficiency of a notice of an appeal from a judgment rendered by a justice of the peace. The plaintiff had judgment before the magistrate, and, subsequently to the day of trial, but within the time prescribed by law lor taking appeals in such cases, the defendant perfected its appeal, and a transcript of the proceedings was transmitted to the clerk of the circuit court. The judgment was rendered on the fifth day of April, 1890. and ten days before the term of the circuit court succeeding the appeal (he plaintiff V president accepted service of this notice:
“Missouri Pacific Railway Com- [ the Peace, pany, Defendant.
“ To Holschen Coal Company, Plaintiff:
“You are hereby notified that the Missouri Pacific Railway Company, defendant herein, has appealed from the judgment of the justice in the above-entitled cause rendered April 1, 1890, to the June term of the circuit court within and for the city of St. Louis, state of Missouri.
“ [ Signed] Thomas J. Poetis, “ Attorney for Defendant.”
On the back of this notice was the following:
“ Service of the within notice is hereby acknowledged this twenty-second day of May, 1890.
“[Signed] J. H. Holschen, “President.”
At the December term (1890) of the circuit court, being the third term of the court after the appeal, the plaintiff moved for an affirmance for want of a notice of appeal. This motion the court overruled. On the day following, the court, on the defendant ’s motion, dismissed the cause for want of prosecution. This action of the court the plaintiff assigns for error.
There has been some very technical law written by the courts of this state on the sufficiency of notices of appeal from judgments rendered in justices’ courts, and it is quite difficult to defend the rulings, when the informality and simplicity in the proceedings of such courts are considered. They can only be justified on the ground that a lax°r rule might, under some circumstances, result in injustice. The first case on the subject is that of Tiffin v. Millington, 3 Mo. 418. In that case Millington sued one Lawless before a magistrate. Tiffin was summoned as garnishee. Judgment was rendered against Lawless, and also against Tiffin. Tiffin appealed. In the notice of appeal which was served on Millington,
The action of the circuit court , also finds support in the case of Cella v. Schnairs, 42 Mo. App. 316, in which this court, through Judge Rombaueb, decided that the
We are of the opinion that the circuit court was right in its rulings, and, therefore, the judgment will be affirmed.