82 Mo. App. 339 | Mo. Ct. App. | 1900
In August, 1898, plaintiff recovered a judgment of $50 against defendant before a justice of the peace of Cole county. Within ten days thereafter, but not on the day the judgment was rendered before the justice, the defendant appealed to the circuit court of Cole county. At the following November term of that court the defendant applied for and secured a change of venue to the Moniteau circuit court. At the January (1899) term of that court, plaintiff filed a motion asking that the judgment of the justice be affirmed on the alleged ground that defendant had failed to give the notice of appeal required by the statute. This motion was sustained 'and the defendant appealed to this count.
I. The question is, whether or not such notice of appeal from the justice as section 6342 requires was given by the defendant ? A notice was given, hut it is Contended that it was riot a notice from -the defendant named in the judgment. The judgment of the justice was rendered against Henry Baer while 'the notice served on plaintiff’s counsel was signed “J. Henry Baer.” In other words, J. Henry Baer gave notice that he had appealed from a judgment rendered against Henry Baer. And whether or not these parties are the same does not appear.
Bidder the former decisions of the supreme court, and of this court as well, we must sustain the action of the trial court.
Counsel for defendant, however, have insisted that plaintiff waived the imperfection in the notice of appeal by an appearance in the matter of defendant’s motion for 'change of venue. That matter however is no part of the record here because not 'incorporated in the bill of exceptions. The bill of exceptions, as signed by the judge, contains no reference thereto except this: “The defendant offered the entire transcript from the Cole county circuit court, to which plaintiff objected as incompetent on this hearing.” Nothing further is said about it. It does not appear whether the court admitted such matter or any part 'thereof. Nor was such matter, or any part thereof, set out in the bill of exceptions, or even referred to with instructions to 'the clerk to copy (the same. It is clear then that we must disregard such matter copied in the abstract, because wanting in legal authenticity. It could only become a part of the record by the certificate of the judge; the clerk had no right to copy the same into 'the transcript. “Judicial records are made by order of the court, 'and not by order of counsel, or by the voluntary actions of the clerk.” McNeil v. Ins. Co., 30 Mo. App. 307 and oases cited; Martin v. Nichols Est., 63 Mo. App. 342.
The judgment of the Moniteau circuit court must be affirmed.