10 Mo. App. 457 | Mo. Ct. App. | 1881
delivered the opinion of the court on rehearing.
The action was brought before a justice of the peace for $35.05, balance of account claimed to be due to plaintiff. On March 31st, the day named in the summons, the plaintiff did not appear before the justice, and defendant, answering on oath, admitted his indebtedness in the sum of $14.97, for which amount the justice, then and there, rendered judgment. On the 7th of April, plaintiff moved to set aside the judgment, on the ground that he was not informed of the day of trial. The justice set aside the judgment, and' granted a new trial, set the case for April 21st, and issued notioe of that fact to defendant. On the 21st of April, the plaintiff appeared and testified, and the cause was taken under advisement by the justice until the 24th of April, when judgment was again rendered for 14.97. On the 4th of' May, plaintiff filed his appeal-bond, and appeal was granted.. On trial anew in the Circuit Court, there was a verdict and judgment for plaintiff for $46.36.
- In the Circuit Court, defendant moved to dismiss the appeal, because no appeal was taken from the judgment rendered on the 31st of March ; and because no appeal was taken from any judgment rendered in the cause.
The statute provides only two cases in which a justice: may grant a new trial (sect. 2949) ; these are, when judg
We held that the appeal taken on May 4th, from the judgment rendered on April 24th, was not “made within ten days after judgment rendered,” as the statute provides (Rev. Stats., sect. 3041), following, as we thought, Patchin v. Bonsack, 52 Mo. 431. That was a case of' appeal in forcible entry and detainer. The language of the statute applicable to such a case is, “ the appeal shall be returnable within six days after the rendition of the judgment.” Wag. Stats. 65Í, sect. 12. The judgment was rendered on Friday, December 1st, and the appeal perfected on Thursday, December 7th, that is, on the seventh day from the day of appeal, counting that day. In the-case at bar, judgment was rendered on the 24th of April. Count that day, and the 4th of May, the day of appeal, is-
It follows that the Circuit Court committed no error in overruling the motion to dismiss the appeal. No other ground for reversing the judgment is suggested by counsel for appellant; and no error appearing to warrant a reversal, the judgment will be affirmed. It is so ordered.