29 Mo. App. 11 | Mo. Ct. App. | 1888
delivered the opinion of the court.
The record shows that, on July 2, 1886, the plaintiff obtained a judgment against the defendant before a justice of the peace. On July 6, the defendant took an appeal, which was returnable to the October term of the circuit court. No notice of the appeal was given to the appellee, and the cause was continued to the December term. On January 14, 1887, the
Our statement, thus far, covers all the proceedings that are sufficiently preserved in the record proper and the bill of exceptions. The learned judge of the circuit court, in overruling the plaintiff’s motion to dismiss the appeal, gave an opinion in writing, which is copied into the record. In this paper he recites that, “ It appears from the attorneys’ trial docket, that the case was regularly set for trial in numerical order, in room No. 1, on December 9, and that the attorney for plaintiff wrote, or caused to be written, his name upon that docket, as plaintiff’s attorney in the case, in the proper place upon that docket. And it appears from. the judge’s docket that, upon the calling of the case for trial, on December 9,'the plaintiff’s attorney and defendant’s attorney answered ; that their names were written on the judge’s-docket; that they then waived a jury, and that thereupon thé court laid over the trial of the cause to Saturday, December 11, at 2 o’clock. The sheriff’s docket also shows this. The judge’s docket next shows that, on December 11, the case was again laid over to December 14, Tuesday, at 2p. m., at which time a rule was made on the justice to amend his transcript. None of the dockets show (as they would if a written motion had. been made) that before this rule was made, the plaintiff orally moved for an affirmance of the judgment.” The learned judge was of opinion that the state of facts thus recited showed a general appearance on the part of the plaintiff to the merits' of the cause, and hence she was barred of her statutory motion for a dismissal of the appeal for want of notice.
It is well understood thattl the opinion of the trial court, filed in a case tried without a jury, will not be
Bights which may be enforced by motion in the progress of a cause, are generally of such a character that the party .entitled may waive them so effectually, by his acts or words, that he can never thereafter be heard to assert them. No better illustration of such a waiver and estoppel need be looked for than would be found in the state of facts (supposing them to be true) recited by the trial judge in his written opinion in this case. The record is silent about them, but we may not, therefore, deny the possibility of their existence. This consideration brings into direct application the well-settled rule that: “In the absence of any showing of the facts, it will be presumed, on appeal, that the judgment is in accordance with the facts.” Bauer v. Cabanne, 11 Mo. App. 114; Van Every v. Flanders, 17 Mo. App. 240. The rule is of universal and controlling application, wherever the record is wholly silent as to the facts upon which a judicial decision has been pronounced,