Davenport Vinegar & Pickling Works v. Shelley

• Decision Date: 06 January 1920
• Docket Number: No. 20475.,20475.
• Court: Missouri Supreme Court
• Parties: DAVENPORT VINEGAR & PICKLING WORKS v. SHELLEY.

217 S.W. 267

280 Mo. 393

DAVENPORT VINEGAR & PICKLING WORKS v. SHELLEY.

No. 20475.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by the Davenport Vinegar & Pickling Works against M. B. Shelley, trading as the M. B. Shelley Manufacturing Company. A judgment of the circuit court, affirming for want of notice of appeal a judgment of a justice of the peace for plaintiff, was affirmed by the Court of Appeals (196 S. W. 1035), and certified by the dissenting judge to the Supreme Court. Reversed and remanded.

Holland, Rutledge & Lashly, R. L. Ailworth, and Albert D. Nortoni, all of St. Louis, for appellant.

Luke E. Hart and Richard C. Hart, both of St. Louis, for respondent.

WHITE, C.

The plaintiff in this case obtained judgment before a justice of the peace. An appeal was taken to the circuit court, where the judgment was affirmed for alleged want of notice of appeal. The defendant appealed to the St. Louis Court of Appeals, where the judgment of the circuit court was affirmed. 196 S. W. 1035. Judge Allen, dissenting, certified the case to this court, deeming the decision in conflict with other decisions of that court and of the Springfield Court of Appeals.

The only question for determination here is whether a sufficient notice of appeal from the justice's court was served. The judgment was rendered before A. A. O'Halloran, justice of the peace, on October 26, 1909, for the sum of $203.90. The notice of appeal was served November 24, 1909, as follows:

"Davenport Vinegar & Pickling Works (a Corporation), Plaintiff, v. M. B. Shelley, Trading as M. B. Shelley Mfg. Co., Defendant. "Before A. A. O'Halloran, Esq., Justice of the

Peace, Fifth District, St. Louis, Missouri. "To the Above-Named Plaintiff, or Its Attorneys, Hart & Hart—Take Notice:

"That an appeal has been taken from the judgment of the justice rendered on the 21st day of October, 1909, in favor of the Davenport Vinegar & Pickling Works, a corporation, and against M. B. Shelley, trading as M. B. Shelley Manufacturing Company, in the sum of 203.-62 dollars; said appeal is addressed to the circuit court of the city of St. Louis, Missouri.

"[Signed] J. M. Lashly, for Defendant.

"We hereby acknowledge due and timely service of the within notice this 24th day of November, 1909.

"[Signed] Hart & Hart, for Plaintiff."

The justice's transcript of the proceedings was duly filed in the circuit court December 9, 1909. This transcript showed the rendition of judgment as stated, and, among other things, that on the day of the trial the defendant filed a counterclaim, and the judgment on the counterclaim was for the plaintiff.

On the 26th day of February the plaintiff filed in the circuit court its motion to affirm the judgment of the justice of the peace. The motion recites that the plaintiff appears for the purpose of the motion only, and alleges, among the grounds for the affirmance of the judgment:

"Second. That the appellant has failed to serve the appellee with notice of appeal, as required by section 4074, R. S. 1899.

"Third. That the so-called notice, which reads as follows."

Then follows an exact copy of the notice above set out, except that under the name of the justice of the peace in the copy of the notice are added: "No. 64052—No. 5."

Afterwards, on the 20th of October, 1910, the plaintiff filed another motion in words and figures exactly like the first motion, except that the figures, "No. 64052—No. 5," were omitted. These numbers designated the number of the case and the division of the circuit court in which the suit was pending.

Subsequently, June 21, 1913, the plaintiff filed its third motion to affirm the judgment setting out all the proceedings before the justice and designating the notice as "a paper."

It is further alleged that, after the said notice had been served upon the plaintiff's attorneys, without their knowledge and consent the number and division of the circuit court to which the same had been assigned had been added.

Thus the matter was pending in the circuit court several years. Three circuit judges attempted a settlement of it. The second motion mentioned above was overruled April 3, 1910. The third motion filed in 1913 was at first sustained and the judgment afterwards set aside and The motion again sustained. The judge who finally affirmed the judgment, in the memorandum which he filed in the case, stated:

"There is no claim or pretense that there was any other judgment rendered between these parties in October, 1909, by the justice who rendered the judgment in question."

1. It is claimed by respondent that the notice of appeal is fatally defective because of three discrepancies between its description of the judgment and the judgment actually rendered. The date of the judgment rendered was October 26, 1909, the statement in the notice is that the judgment appealed from was rendered October 21, 1909; the amount of the judgment was $203.90, the notice gives it 8203.62; the judgment included a finding for plaintiff on defendant's counterclaim, the counterclaim is not mentioned in the notice.

The purpose of the notice required by section 7582, R. S. 1909, it has been held, is to notify; that is, to inform the person notified of a fact. When a person knows of a thing, he has notice of it, and no one needs notice of what he already knows. 20 R. C. L. p. 344; Igo v. Bradford, 110 Mo. App. 670, loc. cit. 674, 85 S. W. 618; Teasdale & Co. v. Fruit Product Co., 120 Mo. App. loc. cit. 586, 97 S. W. 655; Grocery Co. v. Rust, 185 Mo. App. 279, 170 S. W. 375. True, actual knowledge that the case has been appealed is not sufficient. The notice required by section 7582 must be "in writing, stating the fact that an appeal has been taken from the judgment therein specified."

Many cases by the several Courts of Appeals hold that an...