Hays v. Laclede Christy Clay Products Co.

• Decision Date: 07 November 1922
• Docket Number: No. 17495.,17495.
• Parties: HAYS v. LACLEDE CHRISTGY CLAY PRODUCTS CO.
• Court: Missouri Court of Appeals

245 S.W. 196

HAYS v. LACLEDE CHRISTGY CLAY PRODUCTS CO.

No. 17495.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Rehearing Denied November 21, 1922.

Appeal from Circuit Court, Montgomery County; E. S. Gantt, Judge.

"Not to be officially published."

Action by Lloyd Hays against the Laclede Christy Clay Products Company. Judgment for plaintiff in justice's court was affirmed by the circuit court, and defendant appeals. Reversed and remanded. "

W. C. Hughes, of Montgomery City, for appellant.

Claude R. Ball, of Montgomery City, for respondent.

BRUERE, C.

This suit was begun before a justice of the peace. The plaintiff recovered judgment in that court, and the defendant (appellant here) on a day subsequent to that on which the judgment was rendered appealed to the circuit court. Thereafter, in due time, a transcript of the proceedings before the justice was filed in the office of the clerk of the circuit court of Montgomery county.

Defendant having failed to give notice of the appeal, as required by section 2005, Revised Statutes of 1919, the circuit court, upon motion of plaintiff's counsel and at the second term of the circuit court held after the appeal was taken, entered judgment, affirming the judgment of the justice, and defendant has appealed to this court.

The sole question presented here is whether there was a waiver of the failure to give, written notice of appeal. It appears from the record that, at the return term of the appeal in the circuit court, one of the attorneys for the plaintiff agreed to continue the case to the next term of the circuit court. When the case was called for trial at said term counsel for the defendant apprised the court of said agreement. At that time plaintiff's other counsel arose, and said to the court:

"I am the chief counsel in that case; I have charge of that case. There has no notice of appeal been served, and I demand that the notice be served."

Thereupon the court marked the case continued on the docket. It was not continued for want of notice or at request of defendant, but was simply marked continued. It further appears that, pending plaintiff's motion to affirm, defendant filed a motion to correct the transcript of the justice, and that this motion and the motion to affirm were heard together by the court. When these motions were taken up counsel for plaintiff stated to the court that he appeared solely to present his motion to affirm the judgment of the justice; but the record shows that he participated in the hearing of the motion to correct the transcript of the justice, contested the same, objected to the introduction of evidence offered in support thereof, and cross-examined the witness in regard thereto. The purpose of the statute, requiring notice of appeal to be served, is to confer jurisdiction on the appellate court over the person of the appellee. Jurisdiction over the subject-matter is lodged in the circuit court upon the granting of the appeal by the justice. In the instant case if the plaintiff desired to appear, in the circuit court, solely to challenge the jurisdiction over his person he should have confined himself to that issue. By voluntarily entering into a controversy which went to the merits of the case he waived the want of service.

The fact that plaintiff's counsel announced to the court that he appeared solely to present the motion to affirm can be of no avail to plaintiff in the face of what plaintiff's counsel did when he appeared in court. A litigant must either appear or not appear in a...