24 Mo. App. 550 | Mo. Ct. App. | 1887
The plaintiff sued defendant in a justice’s court, on a promissory note. Both parties appeared at the trial. The justice’s transcript recites, inter alia, that: >£Plaintiff comes represented by his son, Samuel Workman, Jr. Defendant comes, also, and pleads a failure of consideration; that he did not receive any value on said note. Dismissed for want of consideration.”
Prom this action of the court plaintiff appealed to the circuit court. When the case was reached for hearing the defendant moved to dismiss the appeal, because there was no final judgment in the justice’s court. This motion was overruled. The cause was tried de novo, both parties participating in the trial. The court, sitting as a jury, found the issues for the plaintiff.
Prom the judgment entered thereon the defendant prosecutes this appeal.
I. The only question of any importance presented is, as to the sufficiency of the entry in the justice’s docket, to authorize the appeal. We are of opinion that it is sufficient. The authorities relied on by appellant are cases respecting judgments of the circuit court, where form is important, owing to the dignity of the court, and the learning that is supposed to characterize those who preside over its deliberations, and of those who enter up its proceedings. But in justices’ courts we are to overlook mere matters of form, and view their proceedings and records according to the merits, and with liberality. To this end the statute provides that, £‘no judgment rendered by a justice of the
And fco make this principle of leniency, respecting the informality of the proceedings, of these courts, more conspicuous, in the revision of 1879, section 3052, it is provided, that: “Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without' regarding any error, defect or other imperfection in the original summons, or the service thereof, or on the trial, judgment, or other proceedings of the justice, etc.”
The error complained of in this case is but an informality or imperfection in the form of the judgment. The record shows clearly enough that the justice heard the case, and held that the defence of a failure of consideration was satisfactorily sustained, and thereupon he dismissed the action. The meaning of which is, that the plaintiff take nothing by his action. This was an end of the case, as far as that court was concerned. Bowie v. Kansas City, 51 Mo. 459. And the plaintiff’s proper remedy was an appeal, to have his cause tried de novo. Week v. Etter (81 Mo. 375), was an appeal from the dismissal of the plaintiff’s action by the justice. We think the judgment in this case came clearly within the spirit of the law applicable to proceedings in justices’ courts. Freeman on Judgments, sect. 53.
II. The defendant assigns for further error the action of the circuit court, in refusing him a new trial, on the ground of surprise at the evidence of the plaintiff at the trial.
We discover nothing in the affidavits in support of
We find no error in this record. The judgment of the circuit court is affirmed.
