Priest v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1885
• Citation: 85 Mo. 521
• Parties: PRIEST v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 521

PRIEST

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Monroe Circuit Court.--HON. THEODORE BRACE, Judge.

REVERSED.

Smith & Krauthoff and Thos. J. Portis for appellant.

The judgment of the court below is erroneous upon its face. Even if it can be presumed that the plaintiff entered his appearance on or before the second day of the first term after the taking of the appeal (although there is nothing showing this fact), this only entitled him to have the case tried at such term, or to have it continued at the cost of the appellant. R. S., sec. 3056. He was only entitled to have the judgment of the justice affirmed in case the appellant failed to give the required notice of the appeal at least ten days before the second term. R. S., sec. 3057. The statute does not make a failure to give notice ten days before the first term cause for an affirmance. The failure must be a continued one until ten days before the second term. “A judgment of affirmance for want of prosecution cannot be taken at the return term of the appeal,” said this court in Nay v. Han. & St. Jo. Railroad, 51 Mo. 575, 577; Riddle v. Gillespie, 67 Mo. 627, 629. It may be true, that the plaintiff had a right to a trial at that term (assuming that he appeared on or before its second day), but this right did not entitle him to an affirmance, nor to a judgment without having proved his case. The judgment of the circuit court shows that it was rendered pursuant to and upon a motion by plaintiff to affirm that of the justice, and excludes the theory that it was a judgment by default, which could only be rendered upon evidence. And the idea that evidence was introduced to sustain the allegations of the plaintiff's statement is expressly negatived. The judgment was rendered upon the motion to affirm as indicated, and there was no writ of inquiry nor proof of the damages as required by law. Snider v. St. L., I. M. & S. Railroad, 73 Mo. 465, 469.

A. M. Alexander for respondent.

The record shows that the appellee entered his appearance on the twenty-fifth day of October, 1881. The term of the court commenced by law on the twenty-fourth day of October, 1881. So that there can be no question that the appearance of the appellee was entered on the second day of the term. The appellee having entered his appearance on or before the second day of the term, the cause stood for trial at that term of court. R. S., sec. 3056. After the appearance of the appellee in proper time the cause, so far as a trial was concerned, stood in the same condition that it would at any subsequent term of the court, and the appellant then making default and the circuit court being a court of general jurisdiction had the power to affirm the judgment of the justice.

BLACK, J.

This suit was instituted before a justice of the peace. Judgment was rendered by default on July 9, 1881. Subsequently, defendant filed a motion to set aside the judgment, which motion was overruled, and on July 22, the defendant appealed to the circuit court. More than ten days intervened between that appeal and the commencement of the next term of the circuit court, the October term, 1881. On October 24, 1881, appellee entered his appearance in the circuit court, the appellant having failed to give any notice of the appeal. On the next day appellant moved to dismiss the suit, which motion was overruled and on October 26, the cause was called for hearing and the defendant failing to appear the judgment of the justice was affirmed. The defendant then appealed to this court.

1. The point made here by the appellant, that the appellee did not enter his appearance on or before the second day of the term of the circuit court, is not well taken, for by law that term commenced on the fourth Monday of October, 1881. The appellee entered his appearance on the twenty-fourth day of the month and hence on the first day of that term.

2. The appellee having thus entered his appearance on or before the second day of the return term, was, according to the plain letter of the statute, entitled to have the cause tried at that term, or continued to the next term at his election. The majority of the court hold that he could not have the judgment affirmed at that term, it being the first term after the appeal was taken, but if he desired to dispose of the case at that term he should have offered evidence and proved up his case, that he could only have a trial de novo, not an affirmance, and the following authorities are relied upon, either as asserting that proposition, or as giving support to it; Berry v. Union Trust Co., 75 Mo. 430; Snider v. Railroad Co., 73 Mo. 465; Page v. Railroad Co., 61 Mo. 78: Blake v. Downey, 51 Mo. 437; Nay et al. v. Railroad Co., 51 Mo. 575; Dooley v. Railroad, 83 Mo. 103.

3. I dissent from this exposition of the law and maintain that the cause being ready for trial, and the appellant failing to appear, the appellee was entitled to a judgment of affirmance. The statute does, it is true, provide that the cause shall be tried anew in the circuit court, but it also provides that to procure an appeal, the appellant must enter into a recognizance conditioned “that the appellant will prosecute his appeal with due diligence to a decision, and that if, on such appeal, the judgment of the justice be affirmed, or upon a trial anew,” etc., that if the judgment be affirmed, such judgment shall be against the appellant and his sureties. Secs. 3040, 3052, 3062, R. S. Now. prior to the revision of 1879, there was no...