Fisher v. Anderson

• Decision Date: 17 November 1890
• Citation: 14 S.W. 629,101 Mo. 459
• Parties: Fisher et al. v. Anderson et al., Appellants
• Court: Missouri Supreme Court

14 S.W. 629

101 Mo. 459

Fisher et al. v. Anderson et al., Appellants

Supreme Court of Missouri

November 17, 1890

Appeal from Johnson Circuit Court. -- Hon. Chas. W. Sloan, Judge.

Affirmed.

Samuel P. Sparks for appellant.

(1) The bar docket of the circuit court was a record authorized by the statute to be kept for the information of the court, bar and the public generally. R. S. 1879, sec. 3722. (2) The voluntary act of entering their names as respondents' attorneys upon the bar docket at the return term of the appeal was in effect an appearance to the cause by respondents and dispensed with the necessity of notice of the appeal, and the court erred in the refusal of the several declarations of law requested by appellant. Page v Railroad, 61 Mo. 78; Berry v. Trust Co., 75 Mo 430. First. A party merely appearing to have the cause put at the foot of the docket gives the court jurisdiction to render personal judgment. Orear v. Clough, 52 Mo. 55; Fry v. Railroad, 73 Mo. 123. Second. A party must either appear at a trial and abide the consequences, or not appear, and cannot occupy an ambiguous position, partly appearing, and partly not appearing. Tower v. Moore, 52 Mo. 118. (3) O. L. Houts and R. M. Robertson were in point of fact the attorneys of respondents of record in the county court, and were such in the circuit court; and wherever a regularly-admitted attorney appears for a party in a cause the presumption is that such appearance is authorized. State v. Lewis, 9 Mo.App. 321; s. c., 74 Mo. 222; Davis v. Hall, 90 Mo. 659; Barlow v Taylor, 65 Mo. 611; Beibinger v. Taylor, 64 Mo. 63; McDonough v. Daly, 3 Mo.App. 606. An attorney may waive a statutory notice of appeal. McDonough v. Daly, 3 Mo.App. 606; Bradley v. Welch, 100 Mo. 258; Weeks on Attys. at Law, p. 338.

O. L. Houts and J. W. Suddath, Prosecuting Attorney, for respondents.

(1) It was mandatory upon the circuit court to affirm the judgment of the county court. R. S. 1879, secs. 3055, 3056, 3057; R. S. 1889, secs. 6342, 6343, 6344; Cooksey v. Railroad, 17 Mo.App. 132. (2) There was no waiver of notice. In order to waive notice by appearance, appellee must appear in court and for general purposes, such as to plead to the merits or contest the trial as when he subpoenas witnesses therefor. Rowley v. Hinds, 50 Mo. 403; Page v. Railroad, 61 Mo. 78. (3) The statute does not say that a bar docket shall be provided for the purpose of recording the entry of appearance of parties. A lawyer by writing his own name upon the margin of a bar docket does not enter the appearance of his client. A lawyer cannot write a record if the docket had been provided for that purpose. (4) The June term of the circuit court was the trial term of this case. It was not then tried or continued for cause, or at the cost of appellants. On the contrary the case took precisely the course of all cases of appeal where there was neither notice of the appeal nor appearance of appellees, and went over without any entry to the second term. R. S. 1879, sec. 3054; R. S. 1889, sec. 6341, and sections before cited.

OPINION

Brace, J.

-- At the May term, 1887, of the county court of Johnson county, and on the nineteenth of May, 1887, a final judgment was rendered by said court establishing a public road petitioned for by respondents over the objections of appellants. In vacation after said term of said court, and on the twenty-eighth of May, 1887, the appellants filed affidavit and bond for, and were granted, an appeal from said judgment to the circuit court of said county, and the transcript was filed in the office of the clerk of said circuit court on the first day of June, 1887. The June term of said court commenced on the thirteenth of that month.

Appeals from judgments of county courts are governed by the law prescribed for appeals from judgments of justices of the peace. R. S. 1879, sec. 1210. The appeal having been allowed ten days before the June term of said circuit court was returnable to and triable at said term. R. S. 1879, sec. 3054. But not having been allowed on the same day the judgment was rendered, the respondents were entitled to ten days' notice of the appeal, before said term. R. S. 1879, sec. 3055. The appellant failed to give such notice. The respondents could have waived the notice, and had the case tried at that term, however, by entering their appearance therein on or before the second day of said term. Sec. 3056. The record does not show that they did so, or that anything was done in the case at that term. It must have been continued to the next (October) term by the court as of course not being otherwise disposed of. The appellant also failed to give ten days' notice of such appeal before the...