Hall v. Thurman

• Decision Date: 07 October 1935
• Docket Number: No. 5547.,5547.
• Citation: 86 S.W.2d 1069
• Parties: HALL v. THURMAN.
• Court: Missouri Court of Appeals

86 S.W.2d 1069

HALL v. THURMAN.

No. 5547.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

"Not to be published in State Reports."

Action by J. W. Hall against C. D. Thurman. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

James B. Benson, of Springfield, for respondent.

BAILEY, Judge.

This suit arose in justice court of T. D. Roberts of North Campbell township, Greene county, Mo.

It appears that on the 16th day of March, 1933, plaintiff obtained a judgment in that court against defendant and that an appeal was taken by defendant to the Greene county circuit court on the 23d day of March, 1933; that no notice of this appeal was served upon plaintiff or his attorney and that after more than two years had elapsed after the taking of said appeal, plaintiff filed a motion in the circuit court to supply the files which had been lost or removed from the office of the clerk of the circuit court of Greene county; that said application to supply the files was granted by order of the court and that certain files, including the judgment and affidavit for appeal, were supplied; that thereafter on the 13th day of March, 1934, plaintiff filed a motion to affirm the judgment for the reason that no notice of the appeal from the justice court had been served upon plaintiff as required by section 2355, R. S. Mo. 1929 (Mo. St. Ann. § 2355, p. 2457); that the circuit court sustained said motion and rendered its judgment accordingly, affirming the judgment on the 21st day of April, 1934; that thereafter defendant filed a motion for new trial, which was overruled, and has appealed to this court.

It is first urged that plaintiff, by filing a motion to supply the lost files and procuring a favorable ruling thereon, entered his general appearance in the case. We are unable to agree with that contention. It was the appellant's duty, of course, to properly perfect his appeal from the justice. It was also his duty to have, himself, filed a motion to supply the lost files, if he intended to prosecute his appeal with due diligence. Young v. School District, 119 Mo. App. 108, 95 S. W. 947. It was his further duty to serve plaintiff with notice of the appeal and failure to do so at least ten days before the second term of the Appellate Court after the appeal was taken entitled the appellee, plaintiff herein, to have the judgment affirmed. Section 2357, R. S. Mo. 1929 (Mo. St. Ann. § 2357, p. 2462). Upon discovering the files had been lost or destroyed, plaintiff was in no position to have the judgment affirmed unless the files were supplied. Obviously, the plaintiff should not be penalized and his right to have an affirmance of the judgment withheld because of the loss of the transcript or the files. His only recourse was to supply said files and in doing so he was not preparing to try the case on its merits, but attempting to place himself in a position to have the judgment affirmed, which was his statutory right.

In an early case, cited by defendant, the general rule was laid down, as follows: "Unless there be a voluntary appearance in the cause, notice is indispensably necessary. And the appearance must be in reference to some act touching the merits of the case. An...