McGinniss & Ingels Hardware Co. v. Taylor

22 Mo. App. 513 | Mo. Ct. App. | 1886

Ellison, J.

This is an action instituted by plaintiff against defendant for the price of a coffin furnished defendant for the burial of his deceased wife. Judgment by default was had before the justice of the peace -and defendant appealed to the circuit court. The notice of appeal is as follows :

“The McGinnis & Ingels Hardware Company, Plaintiff,

vs.

“C. C. Taylor, Defendant.

•' Center Township, Yernon County, Missouri.

“To Plaintiff:—

“You are hereby notified that an appeal has been taken from the judgment of the justice rendered in the •above entitled cause to the circuit court of said Yernon county, returnable to the May term, 1885.

“C. C. Taylor, Defendant,

“By Soott & Hoss, with Murray."

Plaintiff appeared specially in the circuit court, for the purpose of its motion to affirm the judgment of the justice. Pending the motion, defendant “ offered to prove by the plaintiff that it had but one suit against any person by the name of Taylor, and that it never had any suit against any person by the name of Taylor, except the defendant J. J. Taylor.” The court sustained an objection to this evidence and affirmed the judgment of the justice.

The only question in the case is as to the sufficiency of the notice of appeal. It will be observed that the style of the cause and the signature, in the notice, is C. C. Taylor, while the judgment before the justice was J. J„ Taylor.

In the case of Tiffin v. Millington (3 Mo. 418), the action was originally by attachment, Millington being plaintiff and one Lawless being defendant. Tiffin was summoned as garnishee. Judgment was given, by the justice, against Lawless and judgment was also entered up against Tiffin for the amount of the judgment against Lawless. Tiffin appealed to the circuit court, and gave the folio wing notice of appeal: £ £ Mr. J eremiah Millington, take notice that I have taken an appeal to the next term of the circuit court of St. Louis county from a judgment rendered against me by Patrick Walsh in a suit wherein you were plaintiff and I was defendant. Clayton Tiffin, November 12, 1832.” The court says of this notice that “it is obviously a notice which does not describe the-cause, and belongs properly to some other suit between the parties.” It was so held because Tiffin described himself as defendant, whereas Lawless was the defend2ant. It would appear from this that great particularity is required in such notice. And so it, stated in Wade on Notice (sect. 1211). It is evident that the notice is a thing apart from the knowledge, which the party to be-notified, may have.

The appellee may have actual knowledge of an appeal being taken. He may stand by and see it perfected, yet he must have the statutory notice, and this notice must describe the cause in which the appeal is taken.

If the appellee’s knowledge of the appeal does not affect the matter, it would seem that evidence aliunde the-notice, showing that the appellee understood to what the notice referred, should be rejected.

The judgment is affirmed.

All concur.