105 Mo. App. 239 | Mo. Ct. App. | 1904
It is asserted by appellant in his statement of facts, that respondent had one demand against it; that he split that demand and brought two suits thereon before a justice of the peace, both of which were appealed to the circuit court, where they were docketed as numbers 187 and 193; that no notice of the appeal in case No. 193 had been served on the appellee nor had he entered his appearance to said suit in the circuit court. But that notwithstanding no notice of appeal had been given on the day No. 187 was called for trial, on the suggestion of respondent the two suits, over the objection of the appellant, were by the court consolidated and made one suit. The issues were, by agreement of counsel, submitted to the court without a jury, who, after hearing the evidence, found for the plaintiff and assessed his damages at $80, for which amount judgment was rendered. Timely motions for new trial and in arrest were filed, which were by the court overruled. Defendant appealed.
The accounts sued on in the justice’s court are nowhere to be found in the record, nor are they set out in the abstracts; but it is shown by the record proper that there were two causes pending in the circuit court which, by agreement of parties, were tried as one suit. This agreement, whether oral or in writing, was an appearance by defendant to both suits and was a waiver of notice of appeal, if one was required. Bates & Wright v. Scott Bros., 26 Mo. App. 428; Pattison v. Railway, 93 Mo. App. 643; Crenshaw v. Ins. Co., 71 Mo. App. 42.
The main issue and the one upon which the case hinged was whether or not the timber in question was cut from the lands of the Chouteau Land and Lumber Company. The written contract from Reed and Young to Fittenger and Thomas, permitting them to cut timber on their land was collateral to the main issue and its production as evidence was not necessary. 1 Green-leaf on Evidence (15 Ed.), sec. 89. In fact the offer of evidence of the existence or non-existence of that
The judgment is affirmed.