Roll v. Cummings

• Decision Date: 05 March 1906
• Citation: 117 Mo. App. 312,93 S.W. 864
• Parties: ROLL v. CUMMINGS et al.
• Court: Missouri Court of Appeals

93 S.W. 864

117 Mo. App. 312

ROLL v. CUMMINGS et al.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. JUSTICES OF THE PEACE—APPEAL—NOTICE —WHEN TO BE GIVEN.

Rev. St. 1899, § 4073, declares that all appeals from justices' courts, allowed 10 days before the first day of the term of the appellate court next after appeal allowed, shall be determined at such term, unless continued for cause. Section 4074 provides that, if the appeal be not allowed on the same day on which the judgment is rendered, the appellant shall serve the appellee, at least 10 days before the first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an appeal has been taken, etc. Section 4075 provides that, if the appellant fail to give notice of his appeal when such notice is required, the cause shall, at the option of the appellee, be tried at the first term if he shall enter his appearance on or before the second day thereof, or shall be continued as a matter of course until the succeeding term; and that, if the appellee enters his appearance and demands trial, and the appellant fails to appear, the judgment shall be affirmed on motion. Section 4076 provides that, if appellant shall fail to give notice of appeal at least 10 days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed at the option of the appellee. An appeal was taken within less than 10 days before the commencement of the next ensuing term of court. Held, that section 4076, though enacted later than the other sections, did not repeal them, and hence that the appeal was not dismissable for failure to give notice thereof at the second term after the appeal was taken, but that appellant was not required to give such notice until the third term; the action not being triable until then.

2. SAME—ERRONEOUS DISMISSAL OF APPEAL— EFFECT AS TO NOTICE.

The erroneous and premature dismissal of an appeal from a justice's judgment, for failure to give the notice required by statute, did not prevent the appellants from afterwards giving proper notice or excuse their failure so to do.

3. APPEARANCE—SPECIAL APPEARANCE.

On appeal from a judgment of a justice of the peace, an appearance by the appellee for the purpose of moving to dismiss for failure to give statutory notice of appeal was not a general appearance waiving such notice.

Error to Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Charles Roll against David B. Cummings and others. Plaintiff recovered judgment in a justice's court, from which defendants appealed to the circuit court, where the appeal was dismissed, and defendants bring error. Petition in error dismissed.

John C. Nipp and S. J. Van Dorston, for plaintiff in error. Halstead & Halstead, for defendant in error.

JOHNSON, J.

Defendant in error, on September 22, 1904, recovered judgment in a justice's court against plaintiffs in error, and on October 1st following an appeal was taken to the circuit court of Jackson county. The October term of that court began on the 10th day of October, less than 10 days after the appeal was granted. The next term began January 9, 1905, and the one following on April 10, 1905. On January 12, 1905, no notice of appeal having been given, the appellee (defendant in error) filed a motion to affirm the judgment on the ground that the said January term was "the second term of said court since the taking of said appeal," and the appellants had failed to give notice of appeal. This motion was sustained by the circuit court, and the judgment of the justice affirmed. On June 25, 1905, the case was brought here by writ of error.

The following sections of the Revised Statutes of 1899 are before us for construction in the solution of the questions presented:

"Sec. 4073. All appeals allowed ten days before the first day of the term of the appellate court next after appeal allowed, shall be determined at such term unless continued for cause.

"Sec. 4074. If the appeal be not allowed on the same day on which the judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an appeal has been taken from the judgment therein specified. The notice may be served in like manner as an original writ of summons, or by delivering a copy of the same to the appellee by any person competent to be sworn as a witness, or if the appellee shall have appeared to the suit before the justice, either by agent or attorney, said notice may be served on said agent or attorney; and when the appellee does not reside in the county and has no agent or attorney in the suit therein, the service may be by leaving a copy of such notice with the justice.

"Sec. 4075. If the appellant fail to give notice of his appeal when such notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof, or, at his instance, shall be continued as a matter of course until the succeeding term, at the cost of the appellant; but no appeal shall be dismissed for the want of such notice. When, however, the appellee enters his appearance and demands trial as provided for by this section and the appellant fails to appear, the judgment on motion of appellee shall be affirmed.

"Sec. 4076. If the appellant shall fail to give such notice at least ten days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed, at the option of the appellee."

Defendant in error contends that, notwithstanding the October term of the circuit court began less than 10 days after the appeal from the judgment of the justice was granted, it was the first term after the appeal was taken within the meaning of section 4076, and therefore the succeeding term, beginning January 9th, was the second term and the last one before which the notice could be given. It is conceded this construction of the section places it in conflict with...