185 Mo. App. 279 | Mo. Ct. App. | 1914
Plaintiff prosecutes this appeal from a judgment of the court dismissing the case-, and
It appears plaintiff, an incorporated company, sued the several defendants, doing business as copartners under the name of Rust, Swift & Company, before a justice of the peace on an open account and recovered a judgment of $215.45 against them on the 8th day of March, and more than ten days prior to the next, or April, term of the circuit court, on March 11th, defendants perfected an appeal from the judgment of the justice to the circuit court. Subsequently, on the 14th day of March, 1912, defendants served a notice of the appeal from the justice’s judgment on plaintiff. The appeal was returnable to, and docketed at, the April term of the circuit court, but no entry of appearance on the part of plaintiff was had therein, and the case was continued generally. Thereafter, at the June term of the circuit court — that is, the second term after the appeal was perfected — plaintiff appeared specially for that purpose only and moved the circuit court to affirm the judgment of the justice, because, as it asserted, no notice of appeal from the justice judgment had been given. This motion the court overruled and subsequently called the case for hearing. Plaintiff declined to further appear in the matter and, thereupon, the court dismissed the case for want of prosecution. Thereafter, plaintiff appeared again specially and for the purpose only of moving to reinstate the case on the docket and affirm the judgment of the justice because, as before asserted, no notice of appeal had been given. This motion the court overruled and plaintiff prosecutes the appeal here.
It appears that defendant served a notice of appeal on plaintiff’s counsel on the 14th day of March, 1912, reciting the necessary facts concerning an appeal from the judgment of the justice in a case between these parties, except it described the judgment of the
“Before Chauncey J. Krueger, Justice of Peace of the 4th District, City of St. Louis, State of Missouri.
Reinhart Grocery Company, a Corporation, Plaintiff, v. Rust, Swift & Company, a Copartnership, defendants.
To the above named plaintiff to Deveraux Henderson its attorney, before the above named justice, take notice that the undersigned defendants, above named, have on this 11th day of March, 1912, taken their appeal from the judgment of the justice in the above entitled cause, rendered *on the 9th day of March, 1912, for the sum of $215.45 in your favor and against the de-’ fendants. This above appeal has been taken to the circuit court, in the city of St. Louis, State of Missouri, and is returnable to the April term, 1912, of said court. ’ ’
It is to be observed that, while the notice of appeal above copied misrecites the date of the judgment to have been rendered on the 9th day of March, instead of March 8, it states the amount of the judgment rendered by the justice with precision, that is, $215.45. The circuit court treated this as sufficient to identify the judgment appealed from and proceeded accordingly.
It is argued that the court erred in this view, for it is said the notice of appeal is insufficient because
But it is said the rule is established by the course of prior decisions to the effect that, .where the notice of appeal describes the judgment, as by its date, such date must be accurate and truly descriptive. It is true there are several decisions to the effect stated. These cases proceed in the view that notice under the statute is something distinct and apart from knowledge of the fact,- and it is said if the date of the judgment is mentioned in the notice-at all, it must be accurately-stated, for otherwise the notice is misleading. This court has .twice ruled the question as above stated in cases where the notice of appeal involved was otherwise meager in description, as will appear by -reference to the cases of Clay v. Turner, 135 Mo. App. 596, 116 S. W. 480 and Hammond v. Kroff, 36 Mo. App. 118; and the Kansas City Court of Appeals has ruled likewise, as will appear by reference to Cooper v. Northern Acc. Co., 117 Mo. App. 423, 93 S. W. 871. So, too, the Springfield Court of Appeals intimated as much, though the point was not in decision, in Comstock v. Packing Co., 171 Mo. App. 410, 420, 421, 156 S. W. 815.
But though such be true, it must be conceded that the only purpose of the notice of appeal is to notify the adverse party that an appeal has been taken from the judgment therein specified. The statute requires no more. [See Holschen Coal Co. v. Mo. Pac. R. Co., 48
In Clay v. Turner, supra, a notice of appeal reciting all of these facts was declared insufficient, but we are not satisfied with that ruling, for it . seems to sacrifice the substance involved. In another case— that is, Collier v. Langan & Taylor Moving Company, 128 Mo. App. 113, 106 S. W. 593 — we declared a notice of appeal which stated the name of the justice from which the appeal was taken, the amount of the judgment, and the serial number of the case in the circuit court, to be sufficient, though the date of the judgment before the justice was erroneously set forth therein. This being true, it would seem that the judgment here appealed from is sufficiently identified by stating the ease between these parties, the name of the justice of the peace before whom the judgment was recovered, and the precise amount of that judgment. "We regard this as sufficiently descriptive to identify the judgment appealed from.
The reasoning in Collier v. Langan & Taylor Moving Company, 128 Mo. App. 113, 106 S. W. 593, portrays the better view, for there, though the date of the judgment given in the notice was erroneous, its substance otherwise sufficiently identified the judgment, so that no ordinarily prudent person could be mislead. See, also, for a like ruling, though on a more meager
Obviously the.notice of appeal is otherwise .sufficient and the judgment should, therefore, be affirmed. It is so'ordered.