15 Mo. 78 | Mo. | 1851
delivered the opinion of the court.
The only question in this case, is the one with regard to notice.
The plaintiff below, contends, that the appeal is properly for trial at the next term after the first continuance, whether notice of the appeal was ever given or not.
The appellant, in this court contends, that the notice is still necessary, although a continuance was had at the first term, for want of such notice. Th.at such continuance does not necessarily dispense with the notice, and that the appeal is never properly for trial, until notice of it has been given, or until the appellee has done some act by which notice is presumed to have been given, or the want of it waived.
We consider the appellant’s construction of this section, the true one. Notice must be given, notwithstanding the first continuance; unless the appellee appears, or does some act which may be considered tantamount .to notice. This construction is more consonant with the principles of justice. A party should have his day in court. We, therefore, come to the conclusion, that the 22d section, above recited, does not properly authorize the court below to try the appeal, after the first continuance, unless notice has been given. The judgment of the court of common pleas is therefore reversed, the other judges concurring herein.