57 Mo. App. 534 | Mo. Ct. App. | 1894
— This action was begun before a justice of the peace where plaintiff had judgment. Within ten days after the judgment, defendants were allowed an appeal to the circuit court. This was more than ten days prior to the September term of the Buchanan circuit court. Defendant did not give notice of the appeal until after the January term of the circuit court had begun. Whereupon the plaintiff filed his motion asking that the judgment of the justice be affirmed, for the reason that no notice had been given of the appeal, which the court sustained. It appears that the justice did not file his transcript in the circuit court until after the September term. But that fact does not excuse an omission to give notice as required by statute, sections 6342, 6343, 6344. The failure of the justice to file his transcript does not affect the appeal. R. S. 1879, sec. 6337. '
On the notice of appeal, given at the time above stated, there was indorsed by plaintiff’s attorney, the words, “Jan. 6, 1893. I accept service of above notice.” This was not a waiver of time of service. The cases of Holchen Coal Co. v. Railroad, 48 Mo. App. 578, and Cella v. Schnairs, 42 Mo. App. 316, are not applicable. They refer merely to some formalities in the notice. The motion to affirm was properly sustained.
The judgment will be affirmed.