Reinhart Grocer Co. v. Rust

• Decision Date: 03 November 1914
• Docket Number: No. 13752.,13752.
• Citation: 170 S.W. 375
• Parties: REINHART GROCER CO. v. RUST et al.
• Court: Missouri Court of Appeals

170 S.W. 375

REINHART GROCER CO. v. RUST et al.

No. 13752.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

JUSTICES OF THE PEACE (§ 160) — CIVIL JURISDICTION — APPEALS — NOTICE.

Under Rev. St. 1909, § 7582, requiring one appealing from a judgment of the justice of the peace to give notice in writing that an appeal has been taken from the judgment therein specified, a notice, which correctly states the cause between the parties, the name of the justice before whom it was tried, and the amount of the judgment, is sufficient, although it incorrectly states the date on which the judgment was rendered.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by the Reinhart Grocer Company against Marshall Rust and others. From a judgment of the circuit court dismissing the case on appeal from a judgment of the justice of the peace, the plaintiff appeals. Affirmed.

Henderson & Henderson and McShane & Goodwin, all of St. Louis, for appellant. Hal. R. Coleman, of St. Louis, for respondent.

NORTONI, J.

Plaintiff prosecutes this appeal from a judgment of the court dismissing the case, and the question for consideration relates to the sufficiency of the notice of appeal from the judgment of the justice to the circuit court.

It appears plaintiff, an incorporated company, sued the several defendants, doing business as copartners under the name of Rust, Swift & Co., before a justice of the peace, on an open account, and recovered a judgment of $215.45 against them on the 8th day of March, and more than ten days prior to the next, or April, term of the circuit court, on March 11th, defendants perfected an appeal from the judgment of the justice to the circuit court. Subsequently, on the 14th day of March, 1912, defendants served a notice of the appeal from the justice's judgment on plaintiff. The appeal was returnable to and docketed at the April term of the circuit court, but no entry of appearance on the part of plaintiff was had therein, and the case was continued generally. Thereafter, at the June term of the circuit court (that is, the second term after the appeal was perfected), plaintiff appeared specially for that purpose only and moved the circuit court to affirm the judgment of the justice, because, as it asserted, no notice of appeal from the justice judgment had been given. This motion the court overruled and subsequently called the case for hearing. Plaintiff declined to further appear in the matter, and thereupon the court dismissed the case for want of prosecution. Thereafter plaintiff appeared again specially and for the purpose only of moving to reinstate the case on the docket and affirm the judgment of the justice, because, as before asserted, no notice of appeal had been given. This motion the court overruled, and plaintiff prosecutes the appeal here.

It appears that defendant served a notice of appeal on plaintiff's counsel on the 14th day of March, 1912, reciting the necessary facts concerning an appeal from the judgment of the justice in a case between these parties, except it described the judgment of the justice appealed from to be one rendered on the 9th day of March, 1912, whereas the judgment appealed from in the instant case was rendered by the justice on March 8th of that year. Therefore the point pressed by plaintiff in its motion to affirm the judgment for want of notice of appeal and throughout is that no notice of appeal was given in the instant case, for that the judgment appealed from is not the judgment described in the notice, because of the inaccurate date set forth. The notice of appeal involved here is as follows:

"Before Chauncey J. Krueger, Justice of Peace of the 4th District, City of St. Louis, State of Missouri.

"Reinhart Grocer Company, a Corporation, Plaintiff, v. Rust, Swift & Co., a Copartnership, Defendants.

"To the above-named plaintiff to Deveraux Henderson, its attorney, before the above-named justice, take notice that the undersigned defendants, above named, has on this 11th day of March, 1912, taken their appeal from the judgment of the justice in the above-entitled cause, rendered on the 9th day of March, 1912, for the sum of $215.45 in your favor and against the defendants. This above appeal has been taken to the circuit court, in the city of St. Louis, state of Missouri, and is returnable to the April term, 1912, of said court."

It is to be observed that, while the notice of appeal above copied misrecites the date of the judgment to have been rendered on the 9th day of March instead of March 8th, it states the amount of the judgment rendered by the justice with precision; that is, $215.45. The circuit court treated this as sufficient to identify...