American Brass Mfg. Co. v. Philippi
| Decision Date | 01 December 1903 |
| Parties | AMERICAN BRASS MANUFACTURING COMPANY, Respondent, v. PHILIPPI et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Franklin Ferriss Judge.
AFFIRMED.
Judgment affirmed.
Daniel Dillon and Kurt Von Reppert for appellant.
(1) The only question involved in this case is whether or not an appellant is required to give any notice of appeal when an appeal is taken from the judgment of a justice of the peace to the circuit court in cases of unlawful detainer brought under chapter 29, article 2 of Revised Statutes of 1899. The appellant contends that no such notice is required. This chapter of the statute regulating actions of forcibly entry and detainer is a complete system in itself, prescribing to the minutest detail every proceeding for such actions, and has been so declared by the Supreme Court and Court of Appeals in the following cases: Gunn v. Sinclair, 52 Mo. 327; Powell v. Camp, 60 Mo. 569; Gray v Dryden, 79 Mo. 106; Carter v. Tindall, 28 Mo.App. 316; Hastings v. Hennessy, 52 Mo.App. 172; Johnson v. Fischer, 56 Mo.App. 556. (2) Where an appeal from a justice is taken within less than ten days before the first day of the term of the appellate court, the case is not triable at that term except by consent. Knapp v. Skeele, 31 Mo. 434. In case of such default by a defendant in case of appeal, if he be appellant, the judgment of the justice may be affirmed or the appeal dismissed. That is the law at present in this State. Nelson v Nelson, 30 Mo.App. 187; Hamilton v. Jeffries, 15 Mo. 617; Lucas v. Fallon, 40 Mo.App. 551.
Rassieur & Buder for respondent.
(1) Appellant failed to give any notice of appeal. An omission to give notice of an appeal does not affect the jurisdiction of the circuit court, but is a failure to prosecute the appeal and shall be dismissed at the instance of the appellee. R. S. 1899, sec. 3366; R. S. 1899, sec. 3387; Holdridge v. Marsh, 28 Mo.App. 283. (2) Where there is a conflict between two laws, the last expression of the legislative will should prevail, although both were enacted at the same session of the General Assembly. State ex rel. v. Heidorn, 74 Mo. 410; Lang v. Calloway, 68 Mo.App. 393. (3) An appeal from the judgment of a justice of the peace in an action of unlawful detainer, must be taken and perfected in the manner prescribed by special statutory provisions in regard thereto; the statutes in relation to appeals from justices in ordinary proceedings have no application. Accordingly, when such an appeal is taken from a judgment rendered during the term of the circuit court to which it is returnable, it is essential to its validity that it should be perfected by the filing of the requisite affidavit and recognizance with the justice within six days after the rendition of the judgment. Hastings v. Hennessey, 52 Mo.App. 172; Kellogg v. Linger, 60 Mo.App. 571; Walter v. McSherry, 21 Mo. 76.
On April 15, 1902, a judgment in a suit of unlawful detainer was rendered by Justice R. B. Haughton, in the city of St. Louis in favor of plaintiff and against defendant. Two days thereafter the defendant appealed the cause to the St. Louis Circuit Court and the transcript of the justice was filed in the circuit court on April 21, 1902. The circuit court was in session during the whole of the month of April. No notice of the appeal was given by defendant to plaintiff. The cause was not called up until the February term, 1903, of the circuit court, when, on motion of plaintiff to dismiss the appeal, the defendant was required to give a good and sufficient appeal bond (the one filed be-before the justice being deemed insufficient) which he did. After the new bond was filed the plaintiff filed its motion to affirm the judgment of the justice or dismiss the appeal, on the ground that two terms of the court had elapsed and no notice of the appeal had been given. The motion was sustained and the appeal dismissed at the cost of defendant. From this order defendant appealed to this court.
Section 3370, article 2, chapter 29, Revised Statutes 1899, of the forcible entry and detainer acts, provides that appeals from the justice's court to the circuit court shall be returnable, if the judgment is rendered in vacation of the circuit court, to the first day of the next term thereof; but if the judgment of the justice be rendered during the term of the circuit court, the appeal shall be returnable within six days after the rendition of the judgment.
Section 3384 of the act provides that if the transcript from the justice is filed in term time, the cause shall be set for trial on some day during such term, unless for good cause shown the court shall otherwise direct.
Section 3366 of the act provides that when a cause shall be taken to the circuit court under the provisions of this article, notice thereof shall be given as of appeals from justices' courts.
Prior to the revision of 1889, no notice of an appeal from the judgment of a justice in an unlawful detainer suit or for forcible entry and detainer, was required. The effect of section 3366, supra, is to import into the unlawful detainer act, section 4074 (chap. 43, art. 10, R. S 1899), and to require the appellant to give at least ten days' notice of his appeal, if the appeal be taken upon any day other than the day on which the judgment was rendered. No notice of the appeal was given in this case. The appellant contends, that inasmuch as section 3370, supra, required him to have the transcript filed in the circuit court within six days after the rendition of the judgment, the cause was returnable within six days to the April term, 1902, of the circuit court, and that it was a physical impossibility for him to give ten days' notice of appeal before the return term thereof, and that sections 3370 and 4074, supra, are irreconcilable. If it is possible to harmonize these sections and to give effect to the legislative intent as expressed in them without doing violence to the language of either section, it is the duty of the court to enforce them both. State v. Heman, 70 Mo. 441; Cole v. Skrainka, 105 Mo. 303, 16 S.W. 491; Kane v. Railway 112 Mo. 34. We think this may be done. The appeal when taken in vacation of the circuit court is returnable to the first day of the succeeding term. An appeal taken during the session of the circuit court is made returnable to the term, not to a particular day of the term, and the cause can not be entered on the docket of the term except by an order of the court and when so docketed it can not be set for trial on any day of the term, unless ordered to be so set by the court. Section 3370, supra, does not say on what day of the term the cause shall be set for trial, but only that it shall be returnable at that term, thus leaving it to the discretion of the court to name the day the cause shall be set for hearing and when the appellee shall be required to appear and answer to the suit. In other words, it is left to the court to name the particular day of the term to which the cause is in fact returnable. The practice is, when the attention of the court is called to the matter by the appellant by asking leave to have the cause docketed (which he is bound to do, if he prosecutes...
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