85 Mo. 521 | Mo. | 1885
This suit was instituted before a justice-of the peace. Judgment was rendered by default on July 9, 1881. Subsequently, defendant filed a motion to-set aside the judgment, which motion was overruled, and on July 22, the defendant appealed to the-
1. The point made here by the appellant, that the* appellee did not enter his appearance on or before the second day of the term of the circuit court, is not well taken, for by law that term commenced on the fourth Monday of October, 1881. The appellee entered his appearance on the twenty-fourth day of the month and hence on the first day of that term.
2. The appellee having thus entered his appearance on or before the second day of the return term, was, according to the plain letter of the statute, entitled to have the cause tried at that term, or continued to the-next term at his election. The majority of the court hold that he could not have the judgment affirmed at that term, it being the first term after the appeal w as-taken, but if he desired to dispose of the case at that term he should have offered evidence and proved up his-case, that he could only have a trial de now, not an affirmance, and the following authorities are relied upon, either as asserting that proposition, or as giving support to it; Berry v. Union Trust Co., 75 Mo. 430 ; Snider v. Railroad Co., 73 Mo. 465; Page v. Railroad Co., 61 Mo. 78 : Blake v. Downey, 51 Mo. 437 ; Nay et al. v. Railroad Co., 51 Mo. 575; Dooley v. Railroad, 83 Mo. 103.
3. I dissent from this exposition of the law and maintain that the cause being ready for trial, and the
In Martin v. White, 11 Mo. 214, White recovered a judgment against Martin before a justice of the peace. Martin appealed, and when the cause was called he failed to appear, and the judgment of the justice was affirmed. The court then said the right of the appellant to have the cause tried anew must be understood as qualified by this section concerning costs, and he was only entitled toa trial anew when not in default. This case was affirmed in Starr v. Stewart, 18 Mo. 410 ; Milligan v. Dunn, 19 Mo. 643 ; State v. Thevenin, 19 Mo 237. In Nay v. Railroad Co., 51 Mo. 575, the defendant appealed subsequent to the rendition of the judgment of the justice and failed to give any notice. There was no appearance by the plaintiff, appellee, until the eighth day of the return term, and hence the cause did not stand for any action at that term. A judgment of affirmance then entered was held' to be erroneous, but it clearly enough appears that Judge Adams understood the appellee might have a judgment of affirmance at the next term for want of prosecution, should the appellant then fail to appear.
From all this, the conclusion, it seems to me, must be that the appellee is entitled to an affirmance in all cases where there is a failure to prosecute the appeal according to law; that he is entitled to such affirmance where there is a continued failure, on the part of appellant to give the notice, because that constitutes a failure to prosecute the appeal; that, as in the case at bar, where the cause stands for trial and the appellant falls to appear, that also constitutes a failure to prosecute the appeal, and hence the judgment of affirmance
The judgment is, however, in accordance with the ■opinion of the other members of the court, reversed and the cause remanded for new trial.