Harper v. Baker
| Decision Date | 31 January 1845 |
| Parties | HARPER v. BAKER. |
| Court | Missouri Supreme Court |
ERROR TO MONTGOMERY CIRCUIT COURT.
This was an action commenced in a justice's court, by J. & S. Baker against Harper. At the return of the summons, it appears that Harper made his appearance, and pleaded that the day named in the summons was not the regular day for holding the courts of the justice, and secondly that the notes sued on, were not justly due. The transcript further shows that there was a demurrer to these pleas, which were overruled, and thereupon judgment was entered by the justice against Harper. Upon an appeal to the Circuit Court, a motion was made to dismiss the cause for the following reasons: That the justice gave judgment at the return term, and refused to continue the cause, although the defendant appeared, and pleaded; that the Circuit Court had no jurisdiction of the case, there having been no trial on the merits in the justice's court, and that the return of the summons was not made to the regular law day of the justice. This motion was overruled, and judgment being rendered for the plaintiffs, Harper has brought the cause to this court.
The act of January 16th, 1843, directs that after issues shall have been made up, the suits shall stand continued until the second term. The same rule as to continuance and trials, are made applicable to suits in justices' courts. A supplementary act provides, that a written plea shall not be necessary to entitle a party to a continuance of course in a justice's court.
Admitting that an improper refusal to grant a continuance in the Circuit Court would be error, for which this court would reverse a judgment, yet it does not follow that a refusal to grant a continuance in a justice's court would be error, or a reason why the cause should be dismissed from the Circuit Court upon an appeal. When a cause is taken to the Circuit Court by appeal from the justice's court, the powers of the Circuit Court are not limited merely to a correction of the erros committed by the justice, but there is a trial de novo, as though there had been no trial in the court below, and consequently no act committed by the justice can be assigned for error in the Circuit Court.
The error, if any, will be remedied by the Circuit Court on a trial de novo and although errors may have been committed, it will be no cause for dismissing the suit.(a)
It may be inquired, if a justice willfully refuse to grant a continuance, when one is demanded...
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Musgrove v. Mott
...17 Mo.App. 481. Wood & Montgomery for respondent. (1) Plaintiff had the right to amend his affidavit. R. S., secs. 3052, 3060; Harper v. Barker, 9 Mo. 116; v. Owing, 35 Mo. 506. (2) An appeal from a justice cannot be dismissed for error, defect or other imperfection in the proceedings of th......
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Equity Savings & Loan Co., Ltd. v. Boisfontaine
... ... stands as it stood before trial in the justice's court ... See, also, Welter v. Nokken (Minn.) 37 N.W. 947; ... Ser v. Bobst, 8 Mo. 506; Harper v. Baker, 9 ... Mo. 116; Musgrove v. Mott (Mo.) 2 S.W. 214; ... Barclay v. Brabston (N. J.) 9 A. 769; Allen v ... Wood, 1 Head (Tenn.) 436 ... ...
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Bennett v. McCaffery
... ... The duty was a ministerial one, ... enjoined by law, and there is no doubt that mandamus is a ... proper remedy to compel its performance. Harper v ... Baker, 9 Mo. 116; The State ex rel v ... Ryan, 2 Mo.App. 303 ... It is ... true that the entries in the circuit court ... ...