Carter v. Tindall

• Decision Date: 24 December 1887
• Citation: 28 Mo.App. 316
• Parties: J. W. CARTER, Plaintiff in Error, v. LOUIS TINDALL et al., Defendants in Error.
• Court: Kansas Court of Appeals

28 Mo.App. 316

J. W. CARTER, Plaintiff in Error, v. LOUIS TINDALL et al., Defendants in Error.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

ERROR to Buchanan Circuit Court, HON. OLIVER M. SPENCER, Judge.

Reversed and remanded.

The case is stated in the opinion.

HUSTON & PARRISH, for the plaintiff in error.

I. The second reason alleged in the motion for affirmance (in the circuit court) is settled by the record. The judgment was rendered on the twenty-fourth of May, 1886, the appeal was allowed on the twenty-fifth of May, 1886, and the transcript filed in the circuit clerk's office on the twenty-eighth of May, 1886--all of which appears on the record. Besides this point was not urged below.

II. This is a case of forcible entry and detainer. Notice of appeal is not required. The statute on the subject is complete in itself, and that alone can be looked to in determining this question. Gunn v. Sinclair, 52 Mo 327; Powell v. Camp, 60 Mo. 569; Gray v Dryden, 79 Mo. 106. The statute does not prescribe or require notice of appeal. Rev. Stat., chap. 33, art, 2, p 412. This article provides the whole course of procedure. It is the exclusive practice act for this class of cases--covers the whole ground, provides the complete machinery.

III. The law regulating appeals from justices of the peace does not apply. (a ) Because this is a special proceeding, for which special provision is made. (b ) Because if the law requiring ten days' notice, under the general law, be applied, it leads to the absurdity of requiring notice of the appeal to be given at least ten days before the first day of the term at which the cause is to be determined. Rev. Stat., sec. 3055, p. 511. While the forcible entry and detainer law requires all appeals taken in vacation of the circuit court to be returned and tried at that term, if taken during the term of the circuit court, they shall be returnable in six days. Rev. Stat., sec. 2470, p. 413; secs. 2479, 2484, p. 415.

No brief for the defendants in error.

PHILIPS P. J.

This is an action of forcible entry and detainer, instituted in a justice's court. On the twenty-fourth day of May, 1886, the cause was tried in the justice's court, resulting in a verdict and judgment for defendants. On the twenty-fifth day of the same month the plaintiff perfected his appeal from this judgment to the circuit court. The transcript of this proceeding in the justice's court was filed in the office of the circuit clerk on the twenty-eighth day of May, 1886, within six days after the rendition of the judgment by the justice. It appears that this was during the term of the circuit court. In January, 1887, at a term of the said circuit court, the defendants filed a motion to affirm the judgment of the justice, for the reasons assigned in the motion, that the plaintiff, appellant, had failed to give notice to the appellees of the appeal, although two terms of the circuit court had begun since the appeal was taken, and because the cause was tried and judgment rendered by the justice during the May term, 1886, of the circuit court, and while the court was in session, and the justice had failed to file the transcript within six days thereafter, as required by statute. This motion was sustained, and the plaintiff has appealed to this court.

I. As to the second ground alleged in the motion, it is sufficient to say, the fact shown by the record refutes the allegation. The judgment was rendered on the twenty-fourth day of May 1886, and the transcript was filed in the clerk's office on the twenty-eighth day of May, 1886. Reliance for the first ground alleged in the motion for affirmance, we presume, is placed upon the provisions of article 9, chapter 44, of Revised Statutes, concerning appeals generally in justices' courts. By section 3055 of this article it is provided, that if an appeal be not taken on the day on which judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term before the cause is to be determined, with a notice, in writing, stating the fact...