Terrell v. Hunter

21 Mo. 436 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

This was a cause originally commenced in a justice’s court, whence, after a judgment for the plaintiff, it was taken by appeal to the Circuit Court, where, on a trial de novo, there was a judgment for the plaintiff a second time.

This cause, being an appeal from a justice’s court, was tried by the court sitting as a jury, and no instructions were asked by either party. It has been repeatedly held, that causes taken by appeal from a justice’s court to the Circuit Court, must be tried as they were tried by the old law, and not under the present practice act. The proceedings in justices’ courts are expressly excepted from the operation of that act but in one particular, which does not affect this question. On an appeal from a justice’s court to the Circuit Court, if the cause is submitted to the court for trial, instructions must be asked declaring the law, otherwise the case cannot be reviewed. The facts should not he found by the court, but the evidence must be preserved by a bill of exceptions, as under the old practice. The same course is pursued if the trial is by a jury.

We feel no reluctance in making this disposition of the cause, as, on the merits, the judgment is clearly for the right party.

Judge Ryland concurring, the judgment will be affirmed.