59 Mo. 406 | Mo. | 1875
delivered the opinion of the court.
This action was brought before a justice of the peace under the fifth section of the act concerning Justices Courts, (2 Wagn. Stat., 809, 810) to recover fifty dollars, the value of a cow killed by the cars of defendant, being used on its railroad.
A summons was issued by the justice on the 23d day of September, 1871, and was made returnable on the 13th day of October, 1871. The summons was returned by the constable on the return day with the following return endorsed theron:
“ Executed this writ in St. Louis township, this 29th day of September, 1871, by delivering a true copy thereof to L. B. Clark, treasurer of the within named company, the president or other chief officer not being found.”
The docket entries made by the justice, are as follows:
Henry W. Peters vs. The St. Louis and Iron Mountain Railroad.
“Sammons on demand filed for damages, amounting to $50 00, issued to constable O’Connell, September 23d, 1871, returnable 13th October, 1871, returned executed. On the return day parties appeared,' and cause by consent continued to October 20th, 1871. On this day parties appeared and defendant files motion to dismiss the ease for want of sufficient service. Motion taken under advisemeut and cause continued to October 27th, 1871. On this day the case being called, the plaintiff appeared, and motion to dismiss is overruled by the justice. The defendant being called comes not, but makes default; cause investigated and submitted to the justice, who adjudged that the plaintiff have judgment against the defendant for the sum of fifty dollars for his damages, together with costs of suit, etc.,”
It appears that the defendant appeared on the same day with the rendition of the judgment, and filed a motion to set aside the judgment rendered against it by default, which being overruled, it appealed to the St. Louis Circuit Court.
There are only two questions presented in this court for our consideration. The first is, as to the sufficiency of the service of the summons on the defendant, as indicated by the return made thereon by the constable. And secondly, it is insisted by the plaintiff that the appearance of the defendant at the return day of the summons, and by an agreement continuing the cause to a subsequent day, was such an appearance to the action as waived any defect in the service, and the court having jurisdiction over the subject matter of the action became by the defendant’s own act possessed of jurisdiction over the defendant itself.
With the view which we have taken of this ease, it becomes wholly unnecessary to pass upon the first, question raised by the parties to the cause. From the justice’s docket entries, it appears that the day. fixed for the appearance of the defendant by the summons was the 13th day of October. It further appears that the parties appeared at the time fixed in the summons, and by their consent or agreement the case was continued until the 20th day of October, 1871. On this last named day the defendant again appeared and then moved to dismiss the case on the ground the service was not sufficient. It is a general rule that where a defendant appears to an
It seems to me that this ease is a much stronger ease for the plaintiff than the case of Orear vs. Clough; if it is an appearance to simply place the case at the foot of the docket, it certainly must be an appearance, to appear, and by consent, have the case continued for seven days-
The General Term improperly reversed the judgment rendered at Special term, and improperly dismissed the plaintiff’s action. The judgment rendered by the General Term, reversing the judgment of the Special term, and dismissing the plaintiff’s action, will therefore be in all things reversed, and the judgment rendered by the special term of the Circuit Court, will be affirmed.