93 Mo. App. 643 | Mo. Ct. App. | 1902
This action was begun in a justice’s court where judgment was rendered for the plaintiff, from which the defendant appealed to the circuit court, of the county. The judgment in the justice’s court was rendered on November 5, 1900, and the appeal was taken on the fifteenth of said month in time for the November term of the circuit court. No notice of appeal was given and the case was continued to the next April term of the court at the cost of.
The defendant contends that the facts show that there was such an appearance at the November term as waived the statutory notice required.
Section 4074, Revised Statutes 1899, provides that if the appeal be not allowed on the same day on which judgment is rendered, notice in writing of an appeal shall be served on the appellee ten days before the term at which the cause is to be determined. And section 4075 provides that a failure on the part of the appellant to give such notice shall give the appellee the option of a trial at the first term, if he shall enter his appearance, on or before the second day of the term, or at his instance it shall be continued as a matter of course. Section 4076 provides that if the appellant fails to give the required notice ten days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed1 or the ease dismissed.
The courts hold that notice of appeal may be waived by the conduct of the appellee. In Brewing Co. v. Hauessler, 11 Mo. App. 387, it ivas held that the voluntary appearance of the appellee for the general purposes of the case constitute waiver of notice of appeal. In Bates v. Scott, 26 Mo. App. 428, the court held that the statutory notice was “waived by the appellee accepting service of notice to take depositions by appellant, and objecting to certain questions asked of witness and having the grounds of objection noted; and that any act which from its nature implies that he is in court for general purposes will be sufficient.” In Page v. Railway, 61 Mo.
But we can not see how, under tírese authorities, the action of the plaintiff’s attorney at the time the case was continued can be construed as an appearance for any purpose. He was there in court attending to another case and did not answer when the matter was called to the attention of the court by appellant’s attorney, and when he did answer it was at the request of the court to know if he consented to a continuance. His answer that he neither objected nor consented was in effect saying nothing. Had he said he would do> either one or the other, it would have been an appearance. He could not as a member of the bar with propriety have failed to make some response to the judge’s question, and in doing so, in our opinion, he was far from using such language as would imply in the least that he was present for the general purposes of the case. In fact, it was a disclaimer that he was appearing for any purpose whatever. The other facts brought out on the hearing of the motion by appellant were controverted, and the court’s finding in that respect is conclusive upon us.
The cause is affirmed.