Semple & Birge Mfg. Co. v. Thomas

Citation10 Mo.App. 457
PartiesSEMPLE & BIRGE MANUFACTURING COMPANY, Respondent, v. THOMAS THOMAS, Appellant.
Decision Date14 June 1881
CourtCourt of Appeal of Missouri (US)

1. In an action on an open account, a justice has no power, in the absence of the plaintiff, to render a judgment in his favor upon the defendant's testimony.

2. Where a justice, having rendered a void judgment, upon due notice to both parties, resets the cause for trial, an appeal is properly taken from the second judgment.

3. Where a judgment is rendered by a justice on April 14th, an appeal taken on May 4th, is taken in time.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

ZACH. J. MITCHELL, for the appellant.

GEORGE W. ROYSE, for the respondent.

BAKEWELL, J., delivered the opinion of the court on rehearing.

The action was brought before a justice of the peace for $35.05, balance of account claimed to be due to plaintiff. On March 31st, the day named in the summons, the plaintiff did not appear before the justice, and defendant, answering on oath, admitted his indebtedness in the sum of $14.97, for which amount the justice, then and there, rendered judgment. On the 7th of April, plaintiff moved to set aside the judgment, on the ground that he was not informed of the day of trial. The justice set aside the judgment, and granted a new trial, set the case for April 21st, and issued notice of that fact to defendant. On the 21st of April, the plaintiff appeared and testified, and the cause was taken under advisement by the justice until the 24th of April, when judgment was again rendered for 14.97. On the 4th of May, plaintiff filed his appeal-bond, and appeal was granted. On trial anew in the Circuit Court, there was a verdict and judgment for plaintiff for $46.36.

In the Circuit Court, defendant moved to dismiss the appeal, because no appeal was taken from the judgment rendered on the 31st of March; and because no appeal was taken from any judgment rendered in the cause.

The statute provides only two cases in which a justice may grant a new trial (sect. 2949); these are, when judgment of default has been rendered against the defendant, and when judgment of non-suit has been entered against the plaintiff for failing to appear and substantiate his demand. The judgment of March 31st was rendered after hearing the testimony of defendant. Where the plaintiff does not appear, except when the suit is founded on an instrument of writing, the statute directs the justice to render judgment of non-suit, and authorizes no other judgment. Rev. Stats., sects. 2947, 2948. The judgment of March 31st, was void, being a judgment which the justice had no power to render. It was not good as a confession of judgment, for that must be in writing, signed by the defendant and filed with the justice. Rev. Stats., sect. 2986. The case, therefore, is not that presented in Downing v. Garner, 1 Mo. 751, and Cason v. Tate, 8 Mo. 45, in which the first judgment being one which the justice had power to render, his subsequent proceeding in setting it aside is regarded as coram non judice and void. In the case presented by the record before us, the first judgment was a nullity; the appeal was properly taken from the second judgment; and the only question is, whether that appeal was taken in time.

We held that the appeal taken on May 4th, from the judgment rendered on April 24th, was not “made within ten days after judgment rendered,” as the statute provides (Rev. Stats., sect. 3041), following, as we thought, Patchin v. Bonsack, 52 Mo. 431. That was a case of appeal in forcible entry and detainer. The...

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6 cases
  • Boeckler v. Missouri Pacific Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 14 Junio 1881
  • Semple & Birge Mfg. Co. v. Thomas
    • United States
    • Missouri Court of Appeals
    • 14 Junio 1881
    ...10 Mo.App. 457 SEMPLE & BIRGE MANUFACTURING COMPANY, Respondent, v. THOMAS THOMAS, Appellant. Court of Appeals of Missouri, St. Louis.June 14, 1. In an action on an open account, a justice has no power, in the absence of the plaintiff, to render a judgment in his favor upon the defendant's ......
  • Siemers v. Schrader
    • United States
    • Missouri Court of Appeals
    • 20 Noviembre 1883
    ...made on the nineteenth day after the first insertion of notice. German Bank v. Stumpf, 73 Mo. 314; Rev. Stats., sect. 3126; Semple Mfg. Co. v. Thomas, 10 Mo. App. 457. 2. There is no evidence that plaintiff Siemers ever had title to, or possession of, the land in controversy. It seems diffi......
  • Siemers v. Schrader
    • United States
    • Missouri Court of Appeals
    • 20 Noviembre 1883
    ...day after the first insertion of notice. German Bank v. Stumpf, 73 Mo. 314; Rev. Stats., sect. 3126; Semple Mfg. Co. v. Thomas, 10 Mo.App. 457. 2. There is no evidence that plaintiff Siemers ever had title to, or possession of, the land in controversy. It seems difficult to see, therefore, ......
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