Robinson v. Walker

• Decision Date: 31 October 1869
• Citation: 45 Mo. 117
• Parties: WM. J. ROBINSON, Appellant, v. ISAAC WALKER, Respondent.
• Court: Missouri Supreme Court

45 Mo. 117

WM. J. ROBINSON, Appellant,

v.ISAAC WALKER, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellant.

I. The appeal was not taken in time, and is a nullity. (Bernecker v. Miller, 37 Mo. 498.)

II. An appellate court can not get jurisdiction by appearance or consent. (Latham v. Edgerton, 9 Cow. 227; Ex parte Shethar, 4 Cow. 80, 82, 540; Gibson v. Lynch, 1 Murphy, N. C., 495.)

III. An appeal allowed by a court below, when court has no authority to allow it, is a nullity, and the original judgment remains in full force. (Campbell v. Howard, 5 Mass. 376; Loveland v. Burton, 2 Verm. 521; Eddy's case, 6 Cush. 28; Clark v. Conn, 1 Munf., Ky., 160; Tatum v. Dayton, 4 Cush. 290.)

Glover & Shepley, and Gardiner, for respondent.

I. The record nowhere shows that the Circuit Court was in session at the time the judgment before the justice was rendered.

II. The appeal is not vitiated because the transcript from the justice was not in fact filed in the Circuit Court within six days. Were this not true, then in every case of appeal before a justice of the peace, the justice must prepare the transcript, and must file it within the time limited for taking an appeal. Every applicant's rights would depend upon the amount of business that was before the justice on the day the appeal was allowed, and on his celerity in making out the transcript. The statute prescribes two remedies when the transcript is not filed in time; one for the appellant, at section 34, p. 737; and the other for the appellee, at section 24, p. 736.

III. Any informality in the appeal was waived by the applications, on the part of the appellee, for continuance. (Lampley v. Beavers, 25 Ala. 534; Ayres v. Western R.R., 48 Barb. 132; Dole v. Morely, 11 How. P. R. 138; Shaffer v. Trimble, 2 Iowa, 464.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff obtained a judgment before a justice of the peace in an action of forcible entry and detainer, and defendant appealed, but it is claimed that his proceedings in perfecting the appeal were irregular. After the case had been brought to the Circuit Court, and the parties had appeared, and the case been twice continued at the instance of the plaintiff, he moves the court to dismiss the appeal for the following irregularities in bringing up the case: Judgment was rendered on the 17th day of January, 1867; the affidavit and appeal bond were filed and the appeal granted on the 23d, and the transcript filed in the Circuit Court, then being in session, as is claimed, on the 25th. Sections 11, 12 and 23, of chapter 188, Gen. Stat. 1865, under which this appeal was prosecuted, are as follows: “Sec. 11. No appeal shall be allowed in any case unless the same be applied for, and an affidavit and recognizance be filed with the justice, within ten days after the rendition of the judgment and before the return day of the appeal, although such return day be within ten days after the rendition of the judgment. Sec. 12. When the judgment of the justice is rendered during the vacation of the Circuit Court, the appeal shall be returnable to the first day of the next term thereof; but if the judgment be rendered during the term of such court, the appeal shall be returnable within six days after the rendition of the judgment. * * * Sec. 23. The appellant shall cause to be filed in the office of the clerk of the Circuit Court of the county such certified transcript of the record and proceedings before the justice, together with the original affidavit, on or before the return day of the appeal.”

The motion states that the Circuit Court was in session when this appeal was granted, and the irregularities complained of are, first, that the affidavit and recognizance were filed with the justice on, and not before, the return day of the appeal; and, second, that the transcript was filed in the Circuit Court on the eighth day after judgment, instead of “within six days.”

These irregularities are plain and obvious. The party appealing could take up his transcript on the sixth day from the rendition of the judgment, but the justice was under no obligation to furnish him such transcript for the purposes of the appeal, unless the affidavit and recognizance had been filed with him before said sixth day. If there were any doubt as to the...