Bates v. Scott

• Decision Date: 23 May 1887
• Parties: BATES & WRIGHT, Respondents, v. SCOTT BROTHERS, Appellants.
• Court: Kansas Court of Appeals

26 Mo.App. 428

BATES & WRIGHT, Respondents, v. SCOTT BROTHERS, Appellants.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Henry Circuit Court, HON. JAMES B. GANTT, Judge.

Reversed and remanded.

The case is sufficiently stated in the opinion of the court.

A HAYNIE, for the appellants.

The court below erred in sustaining the motion to affirm the judgment of the justice, for the reason that no notice of appeal had been given to appellees, at least ten days before the second term of the appellate court, after the appeal had been taken, for the reason that appellees had waived the service of such notice, and had entered their appearance, in such appellate court, they having appeared at the taking of the deposition, which was an appearance for general purposes. Page v Railroad, 61 Mo. 78, and cases cited.

No brief for the respondents.

HALL J.

This action was begun before a justice of the peace. The plaintiffs had judgment in the justice's court, and the defendants appealed from such judgment to the circuit court. The appeal was not taken on the day on which the judgment was rendered, and, no notice of appeal having been given, by the appellants to the appellees, the case was, at the return term of the appeal, continued by the circuit court. Thereafter and before the second term of the circuit court, the appellants caused a notice to take depositions in the case to be served on the attorneys of record of the appellees, service of which notice was acknowledged by them. Pursuant to such notice, both parties appeared, by their respective attorneys, and the taking of depositions was proceeded with. The appellants' attorney propounded to the witness certain interrogatories, and to certain of the interrogatories the appellees' attorney objected, on the ground of the incompetency of the evidence, specifying the grounds of the objections, which objections, with the grounds thereof, were noted at the time in the deposition of the officer taking the same. The deposition was taken in due course, was properly filed with the clerk of the circuit court, before the second term of said court. At the said second term of the court, the appellees filed a motion to affirm the judgment of the justice, on the ground that the appellants had not served them with a notice of appeal. In the consideration of the motion, the facts just stated, concerning the taking and filing of the deposition, were made known to the court. The court sustained the motion to affirm.

The...