Kinser v. Shands

• Decision Date: 31 March 1873
• Citation: 52 Mo. 326
• Parties: ROBERT KINSER, Appellant, v. EDWARD W. SHANDS, et al., Respondent.
• Court: Missouri Supreme Court

52 Mo. 326

ROBERT KINSER, Appellant,

v.EDWARD W. SHANDS, et al., Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Hendershott & Chandler, for Appellant, cited: Barns vs. Webster, 16 Mo., 330; Williams vs. Coleman, 51 Mo., 21.

The defense is founded on the defendants' own omission, and is contrary to a fundamental principle, that no man shall take advantage of his own wrong. Brooms Leg. Max. 5th Am. Ed. side page 285.

Samuel N. Holliday, for Respondents.

The act of the justice, in granting an appeal was entirely without warrant of law, and void, and there is no consideration for the bond: in any such case, it is void.

A recognizance for an appeal from the judgment of a justice of the peace is void if not entered into in the time and manner prescribed by law (Adams vs. Wilson, 10 Mo., 341; Garnett v. Rodgers, March term, 1873, Sup. Ct. Mo.; Cockrill vs. Owen, 10 Mo., 287; Nichols vs. Circuit Court of St. Louis, Co., 1 Mo., 254; Tilly v. Walls, 4 Mo. 271.) Garnett vs. Rodgers establishes the position relied on by defendants.

ADAMS, Judge, delivered the opinion of the court.

This was an action on three appeal bonds, which had been given before a justice of the peace. Judgments by default had been rendered by the justice, and the appeals had been taken from these judgments without first filing motions to set aside the defaults, and these appeals were dismissed by the Circuit Court.

An appeal does not lie from a judgment by default rendered by a justice of the peace, until a motion has been made to set aside and overruled. The proceedings of the justice in taking these bonds, and granting the appeals, were coram non judice and utterly void.

The point was ruled by this court in the case of Garnett vs. Rogers, et al., decided at this term.

Judgment affirmed.

Judge Ewing not sitting. The other judges concur.