47 Mo. App. 657 | Mo. Ct. App. | 1892
This is an appeal from an order of the circuit court overruling a motion to quash an execution. The cause originated before a justice of the peace, where the plaintiff recovered a judgment. The defendant appealed. When the case reached the circuit court the defendant appeared and voluntarily offered to dismiss his appeal. Thereupon the court entered a judgment of affirmance against the defendant and the sureties on his appeal bond, and the entry of judgment, also, showed a dismissal of the appeal by him. An execution was issued on the judgment, which the defendant asked the court to quash, because the statute did not authorize a judgment of affirmance against him and his sureties after the dismissal of his appeal. This is the only question presented by the record.
The defendant’s contention must necessarily rest on the assumption that, where the defendant appeals from a judgment rendered by a justice of the peace, he may dismiss his appeal without the consent of his adversary, thereby depriving the latter of a summary judgment against him and his sureties. We find nothing in the statute to warrant this, but on the contrary we think it is at war with the policy of the law. To permit such a
Our conclusion seems to us to be unavoidable, when recurrence is had to the adjudicated cases of the state which decide that an appeal from a judgment rendered by a justice of the peace vacates the judgment (Munley v. King, 40 Mo. App. 531; Lee v. Kaiser, 80 Mo. 431; Earl v. Hart, 89 Mo. 263), except where the statute expressly authorizes the dismissal of the appeal, which it only does where the appellant has failed to give notice of the appeal as required by law, and then only at the option of the appellee. R. S. 1889, sec, 6344. As a general rule the plaintiff (if he is the appellant) may dismiss his appeal, but such a dismissal would not reinstate the judgment of the justice. It would be held equivalent to a voluntary nonsuit. Therefore, if the defendant should be allowed' to dismiss Ms appeal, it would necessarily confer upon him the right to compel the plaintiff to take a nonsuit, which would certainly be to his advantage, but in most cases would not prove satisfactory to his adversary.
There is nothing to prevent the defendant in such a case from signifying to the court a willingness to dismiss his appeal, but, if the court should make an entry of dismissal, it would only amount to a declaration by the defendant that he was unwilling to prosecute his appeal, and such declaration would authorize a judgment of affirmance under the statute. Holloman v. Railroad 92 Mo. 287.
it is so ordered.