Hughes v. Hays

4 Mo. 209 | Mo. | 1835

Opinion of the court delivered by

Tompkins J.^*

Hays sued Hughes, before a justice of the peace, and having obtained judgment, Hughes appealed to the cir-court. In that court his appeal was dismissed, and to reverse the judgment of the circuit court, he brings his cause by writ of error to this court. Hughes, it appears, *Rd'not take his appeal from the justice on the day of trial. , He produced a witness in the circuit court, who testified that more than ten days before the first day of said oourt, he had served on Hays a notice signed by Hughes, that an appeal had been taken from the judgment of justice Erwin, before whom the cause had been tr*e^’ The witness stated on examination that he had read the notice, that he could not recollect whether the names of the parties were inserted in the notice or not, but believes they were. The law requires that the notice of the appeal shall be in writing. — See Digest p. 481. Law establishing justices courts sec. 23. — Pru-i dence would require that the party serving the notice! should keep a of it as the best evidence,

-®ut none suc^ being kept in this case, we are of opinion, that sufficient evidence has been given to raise a pre-of a good and sufficient notice being served on ^jle defendant in error. Had it been true that the notice served on him were insufficient, he might have produced it and submitted it to the court. For we do not hold it necessary to give the defendant nojice to produce his notice before the witness can be. let in to prove the tents of the notice served. If this were the case, there* would be no end of giving notice^ to produce notices.v. The circuit court decided correctly that the evidence of the witness to prove the service of written notice was admissible; but it seems to have dismissed the cause, because it did not think the evidence sufficiently strong to prove the service. Nothing being shown to impeach the credit of the witness, we necessarily believe he told the truth, and as above observed, if the notice which he ed on Hays had been bad, Iiays had it in his power to produce it and show its insufficiency. As the matter stands, we hold that enough has been proved to raise a reasonable presumption that Hays received a good and sufficient notice of the appeal, and to throw on him the burthen of proving the contrary. Being then of opinion that the circuit court erred in dismissing the cause, — we reverse its judgment and remand the cause for further proceedings in conformity with this opinion.

* Judge Wash absent.