Bauer v. Cabanne

• Decision Date: 08 November 1881
• Citation: 11 Mo.App. 114
• Parties: CHARLES BAUER, Respondent, v. SARPY C. CABANNE, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 114

CHARLES BAUER, Respondent,

v.SARPY C. CABANNE, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 8, 1881.

1. An appeal from a justice not taken within the time prescribed by the statute must be dismissed by the circuit court.

2. In a proceeding of forcible entry and detainer before a justice, it is the duty of the appellant to cause the transcript and papers to be filed in the circuit court.

3. A voluntary appearance will not give the circuit court jurisdiction, if the transcript and papers are not filed in time.

4. In such an action, an appeal taken in vacation cannot be returned after the return-day of the next term of the circuit court.

5. In the absence of any showing of the facts, it will be presumed, on appeal, that the judgment is in accordance with the facts.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

R. W. GOODE and M. W. HUFF, for the appellant.

E. PEACOCK, for the respondent.

THOMPSON, J., delivered the opinion of the court.

It has always been the law in this state, with reference to appeals from justices of the peace to the circuit court, that, unless the appeal is taken within the time prescribed by the statute, the circuit court acquires no jurisdiction to try the cause de novo, but that it is the duty of the circuit court to dismiss the appeal. James v. Robinson, 1 Mo. 594; Holt v. Varner, 5 Mo. 386; Cason v. Tate, 8 Mo. 45; Bernicker v. Miller, 37 Mo. 498; Robinson v. Walker, 45 Mo. 117; Patchin v. Bonsack, 52 Mo. 431; Moore v. Minkler, 3 Mo. App. 596; Union Savings Assn. v. Keiser, 8 Mo. App. 232. In ordinary cases the time allowed for the taking of an appeal is ten days from the rendition of the judgment (Rev. Stats., sect. 3040), or, where the judgment is a judgment by default, or of non-suit, ten days from the refusal of the justice to set the same aside or grant a new trial. Rev. Stats., sect. 3041. But in cases of forcible entry and detainer, the subject is controlled by a special statute which reads as follows: “No appeal shall be allowed in any case, unless the same be applied for, and an affidavit and recognizance filed with the justice, within ten days after the rendition of the judgment, and before the return-day of the appeal, although such return-day be within ten days after the rendition of the judgment.

“When the judgment of the justice is rendered during the vacation of the circuit court, the appeal shall be returnable to the first day of the next term thereof; but if the judgment be rendered during the term of such court, the appeal shall be returnable within six days after the rendition of the judgment.

The appellant shall cause to be filed in the office of the clerk of the circuit court of the county, such certified transcript of the record and proceedings before the justice, together with the original affidavit, recognizance, and other original papers in the cause, on or before the return-day of the appeal.” Rev. Stats., sects. 2469, 2470, 2481. In cases covered by this statute, it is the duty of the party appealing, and not of the justice, to produce and file the papers in the circuit court; and, where this is not done within the time thus prescribed, it is the duty of the court to dismiss the appeal. Rev. Stats., sect. 2487; Bernicker v. Miller, 37 Mo. 498. And this duty is imperative; the voluntary appearance and consent of ...