Bonney v. Baldwin

• Decision Date: 31 January 1831
• Citation: 3 Mo. 49
• Court: Missouri Supreme Court
• Parties: BONNEY v. BALDWIN & SPENCER.

3 Mo. 49

BONNEY

v.BALDWIN & SPENCER.

Supreme Court of Missouri.

January Term, 1831.

ERROR FROM ST. LOUIS CIRCUIT COURT.

MAGENNIS, for plaintiff.

SPALDING, for defendant.

TOMPKINS, J.

Baldwin and Spencer sued Bonney before a justice of the peace, and obtained a judgment by default. From the judgment of the justice, Bonney appealed to the Circuit Court, and that court dismissed the appeal. Bonney by writ of error has brought the cause here, and assigns for error that the Circuit Court ordered the appeal to be dismissed from its docket, on the ground that it had been improperly granted. There is also a general assignment of errors. No exceptions were taken to the opinion of the court. From the justice's transcript, it appears that judgment was taken on the 8th day of April and that the appeal was asked for on the 18th day of the same month. At the first term of the Circuit Court, the “defendant” continues the cause at his own cost. The term defendant used here is not the most accurate; but it is reasonable to suppose the appellant was intended, he having been the defendant before the justice of the peace; and when the cause comes up from the justice of the Circuit Court, the plaintiff is required to make out his case against the defendant as if it were a new one. See Revised Code, p. 483, § 30. The Circuit Court dismissed the appeal from its docket, “because (as the transcript of the record says) it appeared to the court that the appeal in this case was improperly granted.”

It is contended by the plaintiff in error, that the Circuit Court dismissed his appeal because he did not, when he applied to the justice to set aside the judgment by default, show good cause for setting it aside; and he contends that the act of 23d December, 1826, supplementary to the act establishing Justices Courts, &c., repeals the provision found in the 12th and 22d sections of the act establishing Justices Courts, &c. (see Revised Code, p. 473), and which makes the right to an appeal conditional. To this it may be answered, that it is quite immaterial for what reason the Circuit Court dismissed the appeal: its reasoning may be very correct, and often does assist us in the construction of the statutes: but it is no part of the record, although it be saved by the diligence of the parties, or of either of them. The business of this court is to inquire if there were any good reason for dismissing the appeal.

The defendant in error, by his counsel, contends that the appeal being taken after the day of trial, and there being no notice given of...