McCabe v. Lecompte

• Decision Date: 31 October 1851
• Citation: 15 Mo. 78
• Parties: MCCABE v. LECOMPTE.
• Court: Missouri Supreme Court

15 Mo. 78

MCCABE

v.LECOMPTE.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

McCabe, as surviving partner of Lane & McCabe, sued Lecompte before a justice of the peace. The cause was tried in July, 1850. There was a judgment in favor of Lecompte, and within ten days McCabe appealed to the St. Louis Court of Common Pleas. The record was returned to the September term 1850, of that court; but no notice of the appeal having been given to Lecompte, so as to render the cause triable at that term, it was continued of course, to the February term, 1851. At that term, it was regularly docketed and tried, when judgment was rendered for the plaintiff. The defendant, Lecompte, after the end of four days after this judgment, moved to set it aside; the reason assigned, being, that the defendant had no actual notice of the appeal: which motion was overruled, and defendant excepted. The only question, then, is, whether the want of notice of an appeal from the judgment of a justice of the peace, has any other effect than to cause a continuance of the case at the return term. The defendant, Lecompte, maintains that an appeal so taken, is not triable until actual notice has been given. The respondent maintains that the appeal is triable at the second term at any rate, unless continued for cause; the only effect of the failure to give notice, being to cause a continuance for one term (the return term), at the cost of the appellant.

MORROW & DELAFIELD, for Appellant. The only point in the case is, that a judgment rendered against a-party who has had no notice of the proceedings, is utterly void; Smith v. Ross & Strong, 7 Mo. R. 463.

A. J. P. & P. B. GARESCHE, for Respondent. The respondent relies upon the 22nd section of art. 8, of the act concerning Justices' Courts, p. 671, of Rev. Code of 1845.

RYLAND, J.

The only question in this case, is the one with regard to notice. The judgment before the justice of the peace, was in favor of the defendant. Some days afterwards the plaintiff appealed, but gave no notice of his appeal to the defendant. At the first term of the Court of Common Pleas, to which the appeal was taken, the cause was continued at the costs of the appellant. At the next term, the cause was called for trial and judgment was rendered, by default, against said defendant. The defendant afterwards moved to set aside this judgment and filed her affidavit in support of the motion, alleging want of notice of the appeal....