| Mo. Ct. App. | Feb 17, 1903
1. Section 3368, of the forcible entry and detainer act (R. S. 1899) allows an appeal to the aggrieved party.
Section 3369, of the act, provides that no appeal
Section 3370, of the act, provides that the return day of the appeal shall if the. judgment is rendered in vacation of the circuit court, be on the first day of the next term thereof, but if the judgment is rendered in term time of the circuit court, the return day of the appeal shall be within six days from the rendition of the judgment.
Section 3381, of the act, requires the appellant to file in the office of the clerk of the circuit court a certified transcript of the record, etc., in the justice’s court on or before the return day of the appeal.
The next section (3382) provides that if the appellant fails to file the transcript, etc., on or before the return day of the appeal, the appellee may produce such transcript and papers and the court shall affirm the judgment, unless the appellant shall show good cause for his default.
' Because the circuit court of St. Louis county adjourned its September term from November 30, to December 30,1901, and during the thirty days of adjournment the judge was engaged in holding terms of court in other counties of his circuit, defendants contend there was no term of the St. Louis County Circuit Court during the month of December, 1901, and that the appeal was not returnable until the next regular term and, hence, they had ten days in which to perfect their appeal.
The Thirteenth Judicial Circuit is composed of St. Louis, Franklin, Grasconade and Osage counties, (sec. 169, R. S. 1899).
Section 173, Revised Statutes 1899, requires that a term of the circuit court shall be held in the county of Osage on the first Monday in December, in the county of Grasconade on the second Monday in December, and in the county of Franklin on the third Monday in De
It is contended that the two terms of circuit court can not co-exist in one and the same circuit and that when the judge opened court in Osage county on the first Monday in December, the September term of the St. Louis County Circuit Court - was thereby ended. A term of court has been defined to signify the period from the first day of the term fixed by law until court is adjourned to the next court in course, and the word “vacation” has been held to mean the period between the day on which a term of court is adj ourned to the next court in course, or until the day of the beginning of another term and not the mere interval when, for any reason,the court is not in session and is adjourned over for more than a day. State v. Derkum, 27 Mo. App. (K. C.) 628; Hadley v. Bernero, 97 Mo. App. 314" court="Mo. Ct. App." date_filed="1902-12-16" href="https://app.midpage.ai/document/hadley-v-bernero-8263151?utm_source=webapp" opinion_id="8263151">97 Mo. App. 314; Bronson v. Schulten, 104 U.S. 1" court="SCOTUS" date_filed="1881-02-28" href="https://app.midpage.ai/document/railroad-co-v-hamersley-90415?utm_source=webapp" opinion_id="90415">104 U. S. 1. c. 415; Brayman v. Whitcomb, 134 Mass. 525" court="Mass." date_filed="1883-03-02" href="https://app.midpage.ai/document/brayman-v-whitcomb-6420918?utm_source=webapp" opinion_id="6420918">134 Mass. 525. Under these authorities we hold that the month of December was embraced in the September term, 1901, of the St. Louis County Circuit Court and the appeal from the justice’s court was taken during a term of the circuit court.
2. Appellants insist that the Sunday following the Friday on which the judgment was rendered by the justice should be excluded from the count of the days in" determining the return of the appeal. If Sunday be excluded then the return day of the appeal was December 13th and the transcript was filed in time. The fourth subdivision of section 4160, Revised Statutes 1899, article 2, entitled, “Construction of Statutes,” provides that “the time within which an act is to be
In Patchin v. Bonsack, 52 Mo. 431" court="Mo." date_filed="1873-03-15" href="https://app.midpage.ai/document/patchin-v-bonsack-8004018?utm_source=webapp" opinion_id="8004018">52 Mo. 431, and Lieherman v. Findley, 84 Mo. App. (K. C.) 315, it was ruled that in computing the time limited for perfecting an appeal from a justice’s court, Sunday is to he included.
In the City of St. Joseph ex rel. Saxton Nat. Bank v. Landis, 54 Mo. App. (K. C.) 315, it was held that in computing statutory time Sunday is to he included. The statute and these decisions are against defendant’s contention and we hold that they did not perfect their appeal within six days from the rendition of the judgment hy the justice.
3. It is further contended that under the provisions of section 3382, supra, defendants showed good cause for their default and the court should have overruled the motion on the evidence. This section can he invoked only when the appellant fails to file a transcript-together with the original affidavit, recognizance and other original papers. In such case, after the return day of the appeal, the appellee may file such a transcript, etc., and move for judgment on the transcript he has produced and filed. Bernicker v. Miller, 37 Mo. 498" court="Mo." date_filed="1866-03-15" href="https://app.midpage.ai/document/bernicker-v-miller-8001871?utm_source=webapp" opinion_id="8001871">37 Mo. 498. The plaintiff did not do this nor' could he have done so. He moved to dismiss the appeal on the ground that it was taken out of time and for this reason the court had no jurisdiction over the suhject-matter of the suit. To confer jurisdiction, on the circuit court over the suhject-matter of the suit it was essential that the appeal should have been perfected by filing a transcript, etc., in the office of the circuit clerk on or before the return day of the appeal. Robinson v. Walker, 45 Mo. 117" court="Mo." date_filed="1869-10-15" href="https://app.midpage.ai/document/robinson-v-walker-8002722?utm_source=webapp" opinion_id="8002722">45 Mo. 117; Holman v. Hogg, 83 Mo. App. (St. L.) 370; Bauer v. Cabanne, 11 Mo. App. 114" court="Mo. Ct. App." date_filed="1881-11-08" href="https://app.midpage.ai/document/bauer-v-cabanne-8258529?utm_source=webapp" opinion_id="8258529">11 Mo. App. 114.
The defendants having failed to perfect their appeal within the time allowed hy law, the circuit court
The judgment is affirmed.