Berry v. Union Trust Co.

• Decision Date: 30 April 1882
• Parties: BERRY v. THE UNION TRUST COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

75 Mo. 430

BERRY

v.THE UNION TRUST COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1882.

Error to Vernon Circuit Court.--HON. J. D. PARKINSON, Judge.

REVERSED.

Jno. Montgomery, Jr., for plaintiff in error, cited Gluch v. Diebold, 1 Mo. App. 265; Pearson v. Lovejoy, 35 How. Pr. 195; 3 Mo. 122; 50 Mo. 404.

Scott & Stone for defendant in error, cited McCabe v. Lecompte, 15 Mo. 78; Henderson v. Henderson, 55 Mo. 545.

RAY, J.

It appears from the record that this suit was originally commenced before a justice of the peace in Vernon county; that on the return day, the defendant not appearing, judgment by default was rendered against it; that within ten days thereafter the defendant filed its motion for a new trial, which was by the court overruled; that afterward said cause was duly appealed to the circuit court of that county, but that said appeal was taken or allowed on a day subsequent to the rendition of the judgment; that no notice of said appeal was given by appellant, and no entry of appearance in said cause was made by appellees, as required by law on or before the second day of the return term of said appeal. It also appears that after the transcript was filed with the clerk of the circuit court, the defendant gave notice to plaintiffs that it would take depositions in said cause at a time and place specified; and that plaintiffs waived the formal service of said notice by accepting service thereof in writing; that said depositions were taken accordingly; that plaintiffs appeared and cross-examined the witnesses, and that said depositions, so taken, were duly filed with the clerk of said circuit court before the commencement of the return term of said appeal. It further appears that plaintiffs, on the third day of said term, ordered and had issued and served a subpœna for witnesses in said cause. Afterward, to-wit: on the 19th day of said term plaintiffs filed in said cause the following motion, towit: “Now come plaintiffs and move the court to affirm the judgment of the justice, for the reason that defendant fails and refuses to prosecute its appeal in this court;” which motion was sustained by the court, and judgment was rendered thereon. Afterward, on the same day, the defendant appearing solely for this motion, filed its motion to set aside said judgment of affirmance, for the following among other reasons, to-wit: Because the same was improvidently and improperly rendered--said cause not being triable at that term; Because said appeal not having been taken on the day of the rendition of the judgment, and no notice thereof having been given the appellees, and no appearance of said appellees having been entered, in said cause, on or before the second day of said term, said affirmance of said judgment was premature, illegal and improper; and because it is shown, by affidavit, that said defendant has a good and meritorious defense to said action.” But the court overruled this motion; whereupon the defendant duly excepted, and has brought the case here by writ of error.

The controlling question presented by this record is the propriety of the ruling of the circuit court in its judgment sustaining said motion for the affirmance of said judgment. This ruling involves the construction of section 22, 2 Wagner's Statutes, 850, being section 3056 of the Revision of 1879, which provides: “If the appellant fail to give notice of his appeal, when such notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof; or, at his instance, shall be continued, as a matter of course, until the succeeding term, at the cost of the appellant, but no appeal shall be dismissed for want of such notice.” By section 21 same statute it is provided that when the appeal is not allowed on the same day when the judgment is rendered, notice is required to be served on the appellee ten days before the term at which the cause is to...