119 Mo. App. 108 | Mo. Ct. App. | 1906
Plaintiff brought this action before a justice of the peace and on November 26,1904, recovered judgment. On the same day defendants filed their affidavit and bond for appeal and the appeal was allowed. The next term of the circuit court to which the cause was appealed began on the first Monday of January, 1905, and the succeeding term on the first Monday in May following. No transcript of the proceedings, etc., was filed by the justice in the circuit court as required by law (Revised Statutes 1899, sec. 4069) .nor did the
On June 16th appellee filed a motion to affirm the judgment on the ground that appellants had failed to prosecute their appeal with due diligence. On the hearing of this motion, the judgment was affirmed and defendants appealed.
As the appeal was granted by the justice who tried the cause on the day the judgment was rendered, no notice of appeal was necessary, but, regardless of the matter of notice, the appellants were charged with the duty to “prosecute their appeal with due diligence to a decision.” [Revised Statutes 1899, sec. 4060.] And a failure to perform this duty gives an appellee the right to have the judgment affirmed on proper motion. [R. S. 1899, sec. 1557.]
The Supreme Court said in Westpheling v. Enright, 60 Mo. 279, “It is obvious that the phraseology of the statute, concerning the duty of appellant to prosecute without delay is simply another form of requiring him not to be in default,” and the controlling question arising from the facts before us is this, were the appellants in default in the performance of a duty imposed upon them by law when the appellee filed her motion to affirm
These defaults of the justices imposed a duty on the appellants.' Their obligation to prosecute their appeal with due diligence put the burden on them to take the necessary step to perfect the appeal when the official neglect of duty became apparent.. They should have acted with reasonable diligence to place the appellee in a position to demand a speedy trial. Their first opportunity to move for a rule and attachment was presented at