Munroe v. Herrington

• Decision Date: 03 March 1903
• Citation: 73 S.W. 221,99 Mo.App. 288
• Parties: O. M. MUNROE, Respondent, v. M. F. HERRINGTON, Appellant
• Court: Missouri Court of Appeals

73 S.W. 221

99 Mo.App. 288

O. M. MUNROE, Respondent, v. M. F. HERRINGTON, Appellant

Court of Appeals of Missouri, St. Louis

March 3, 1903

Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.

The case is here on a full transcript. The abstracts of the record made by defendant (appellant) are somewhat deficient but not so much so as to authorize the court to sustain plaintiff's motion to dismiss the appeal.

The suit was on a promissory note and originated before W. A Hill, a justice of the peace in Jefferson county, Missouri. On the twenty-seventh day of April, 1901, Justice Hill rendered judgment against the defendant by default. On the sixth day of May following, defendant filed with the justice his affidavit and bond for appeal. The appeal was duly allowed returnable to the September, 1901, term of the Jefferson Circuit Court.

At the September term, 1901, the cause was continued--according to the judge's minutes, "by order of the court;" according to the record entry made by the clerk, "by agreement of the parties." The entry by the clerk however, was evidently a mistake as shown by the judge's minutes and other evidence that was introduced.

At the January term, 1902, and on the thirteenth day of said month plaintiff moved the court to affirm the judgment of the justice on the ground that defendant had failed to serve him with notice, of the appeal, in writing ten days before the beginning of the second term of the court after the appeal had been taken, as required by section 4074, Revised Statutes 1899. In opposition to the motion, defendant offered and read in evidence the following notice of appeal and return thereon:

"Before Willis A. Hill, justice of the peace, within and for Central township, Jefferson county, State of Missouri: O. M. Munroe, plaintiff, v. M. F. Herrington, defendant. You are hereby notified that I have taken an appeal from the judgment of the justice in the above entitled cause to the circuit court of the county of Jefferson. This 25th day of November, 1901. M. F. HERRINGTON, Appellant.

"State of Missouri, County of Jefferson, ss.: M. F. Herrington, of lawful age, being duly sworn, on his oath says that he served the within notice on O. M. Munroe, therein named, in the county of Jefferson, State of Missouri, at De Soto, by delivering to him a true copy thereof on the 25th day of November, 1901.

"M. F. HERRINGTON."

Defendant also offered and read in evidence the following affidavit:

"Sam Byrns and J. F. Green, being duly sworn, on their oath, state that they are the attorneys for the defendant in the above entitled cause, that they have examined the papers and record in the case of the plaintiff against the defendant, and have been advised by the defendant on the facts concerning the execution and transfer of the note which is the basis of the action in said cause and have advised said defendant that they believe he is not liable in said action on said note, and further state that they believe that said defendant has a complete and perfect defense in said cause against the alleged cause of action of the plaintiff.

"SAM BYRNS,

"J. F. GREEN.

"Subscribed and sworn to before me this 17th day of January, A. D. 1902.

"A. T. BREWSTER,

"Clerk of the Circuit Court."

The court adjudged the notice of appeal insufficient and affirmed the judgment of the justice. Defendant's motion to vacate the order affirming the judgment of the justice and for new trial being of no avail, he appealed.

Reversed and remanded.

James F. Green and Sam Byrns for appellant.

(1) There was only one plaintiff and one defendant in this case and one judgment. Herrington, the defendant, took the appeal; Monroe, appellee. The appellant gave him "notice in writing stating the fact that an appeal has been taken from the judgment therein specified." The notice was sufficient. Sec. 4074, R. S. 1899. For form of notice see notice of appeal, form 168, in "Forms Adapted to the Laws of Missouri," on page 41 of forms, volume 1, of the Revised Statutes 1899. Holshen Coal Co. v. Railroad, 48 Mo. 578. (2) The following cases are cited here, not for their analogy to the case at bar; but, because they embrace the whole line of adjudicated cases in this State, on the subject of defective notice of appeal from judgment of justice of the peace. This case does not fall within the line: Tiffin v. Millington, 3 Mo. 418; McGinnis v. Taylor, 22 Mo.App. 513; Hammond v. Kroff, 36 Mo.App. 118; Cella v. Schnairs, 42 Mo.App. 316; Smith Drug Co. v. Hill, 61 Mo.App. 680; 82 Mo.App. 339.

E. J. Bean, Dinning & Hamel for respondent.

(1) The statement filed by appellant, can not be tortured into an abstract of the record, or "a clear and concise statement of the pleadings and facts shown by the record." The Kansas City Court of Appeals, in the case of Dixon v. Thomas, 91 Mo.App. 365, speaking on the subject, said: "The appeal will have to be dismissed since the defendant has utterly failed to file an abstract of the record as required by our rule 15. It is true he has filed a book entitled "Statement" which doubtless meets the requirement of the statute (R. S., sec. 863). But a statement is not an abstract and the filing of the one does not meet the requirement for filing the other.'" McCullom v. Ulen, 87 Mo.App. 607; State ex rel v. Reynolds, 82 Mo.App. 153. Section 4074, Revised Statutes, says: "The appellant shall serve the appellee . . . with a notice in writing, stating the fact that an appeal has been taken from the judgment...