Hamilton v. Jeffries

• Decision Date: 31 March 1852
• Citation: Hamilton v. Jeffries, 15 Mo. 617 (Mo. 1852)
• Parties: HAMILTON v. JEFFRIES.
• Court: Missouri Supreme Court

15 Mo. 617

HAMILTON

v.JEFFRIES.

Supreme Court of Missouri.

March Term, 1852.

APPEAL FROM FRANKLIN CIRCUIT COURT.

Charles R. Jeffries commenced an action of unlawful detainer against Hamilton before one Short, a justice of the peace in Franklin county, for the possession of a piece of land. On the trial before the justice, judgment was given for Jeffries within the statutory time; Hamilton applied to the justice for an appeal to the Circuit Court and filed his bond, &c., and the justice granted an appeal; at the return term of the appeal, a transcript not having been filed in time, the appellee moved the Circuit Court to dismiss the appeal, and therefore the appellee filed his petition for a rule upon the justice, setting forth frequent applications for a transcript, and failure and refusal of the justice to furnish; also collusion between the appellee and justice to prevent a hearing of the appeal in the Circuit Court, to which petition the justice filed his answer, and therefore, court being satisfied of the merits of the appellant's complaint ordered the justice to file the transcript. Thereupon the papers filed showing there was no sufficient affidavit and bond filed upon taking the appeal, moved the court to dismiss the appeal. The appellant then produced before the hearing of the motion to dismiss a sufficient bond and affidavit as the record shows and proposed to file them, but the court refused to permit the bond and affidavit to be filed, and therefore dismissed the appeal; the appellant excepted and brings the suit to this court by appeal.

STEVENSON, for Appellant. 1. The court should have permitted the appellant to file sufficient bond and affidavit at any time before trial. 2. That the court should not have dismissed the appeal on account of the insufficiency, informality or imperfection of the affidavit and bond before the justice, a sufficient bond and affidavit having been tendered before trial and so as not to delay the trial. 3. That the court did not err in refusing to affirm the judgment of the justice, the appellant having shown to the court good cause for his default. See Rev. Stat. 279, §§ 27, 28, 29; 8 Mo. R. 498, Keim v. Daugherty; 17 Mo. R. 572, Jamison v. Yeates.

KENNETT, for Respondent. 1. That the Circuit Court erred in overruling the motion to affirm the judgment of the justice, and permitting the transcript to be filed and the cause set for trial. Because it was the duty of the appellant to have filed the transcript and other papers on or before the return day of the appeal, and if he relied upon the promise of the justice of the peace or any other person to attend to it for him and was deceived by him, this will not excuse his failure, to attend to it himself, and the plaintiff had a right to produce such transcript and papers and have the judgment of the justice affirmed. See Stat. of 1845, title Forcible Entry and Detainer, art. 2, §§ 23, 24, and the case of Keim v. Daugherty, 8 Mo. R. 498, 499. 2. That if the appellant had applied to the justice for the transcript and papers and the justice refused to deliver them to him, the Circuit Court would, on application for that purpose, have compelled the justice to return the papers, and the failure of appellant to make such application before the filing of the...