Roll v. Cummings

• Decision Date: 05 March 1906
• Parties: CHARLES ROLL, Defendant in Error, v. DAVID B. CUMMINGS et al., Plaintiffs in Error
• Court: Kansas Court of Appeals

93 S.W. 864

117 Mo.App. 312

CHARLES ROLL, Defendant in Error, v. DAVID B. CUMMINGS et al., Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

March 5, 1906

Error to Jackson Circuit Court.--Hon. Hermann Brumback, Judge.

WRIT DENIED.

John C Nipp for plaintiffs in error.

The court erred in sustaining appellee's (defendant in error herein) motion to affirm the judgment of the justice of the peace at the January Term, 1905, of the circuit court. R. S 1899, sec. 1702; R. S. 1899, sec. 1718; R. S. 1899, sec 1734; R. S. 1899, sec. 4074; R. S. 1899, sec. 4075; R. S 1899, sec. 4076; Knapp & Co. v. Skeele, 31 Mo. 434 (1859); Nay v. Railroad, 51 Mo. 576 (1873); Brownville v. Rembert, 63 Mo. 394 (1876); Davis v. Schields, 14 Mo.App. 397 (1883).

Halstead & Halstead for defendant in error.

(1) Defendant in error was entitled to an affirmance of the judgment at the January term, 1905, of the circuit court, and the court committed no error in affirming that judgment on the 14th day of January, 1905. R. S. 1899, sec. 4073; R. S. 1899, sec. 4074; R. S. 1899, sec. 4075; R. S. 1899, sec 4076. (2) The construction placed upon section 4076, Revised Statutes 1899, by the St. Louis Court of Appeals, in the case of Davis v. Schields, 14 Mo.App. 397, is erroneous, and is in conflict with the construction placed upon that section by the Supreme Court. Bonney v. Baldwin, 3 Mo. 49; Priest v. Railway, 85 Mo. 521; Hollman v. Railway, 92 Mo. 284; Rowley v. Hinds, 50 Mo. 403; Nay v. Railway, 51 Mo. 575; Brownsville v. Rembert, 63 Mo. 393; Riddle v. Gillespie, 67 Mo. 627; State ex rel. v. Johnson, 132 Mo. 105; Steppacher v. McClure, 75 Mo.App. 135. (3) Section 4075, Revised Statutes 1899, in so far as it is in conflict with section 4076, was repealed by section 4076. Ex parte Joffee, 46 Mo.App. 360; Bryant v. Russell, 127 Mo. 422; State ex rel. v. Dolan, 93 Mo. 576. (4) Since a reversal by this court of the judgment of affirmance rendered by the circuit court could only result in a similar judgment of affirmance, this court will not reverse the judgment of affirmance already rendered by the circuit court. Wolf v. Harrington, 38 Mo.App. 276; Hempstead v. Darby, 2 Mo. 25; McCabe v. Lecompte, 15 Mo. 78; Rowley v. Hinds, 50 Mo. 403; Page v. Railway Company, 61 Mo. 78; Hedecker v. Ganzhorn, 50 Mo. 154; Conley v. Doyle, 50 Mo. 234; Telephone Co. v. Electric Light Co., 46 Mo.App. 121; State ex rel. v. Benedict, 51 Mo.App. 642; Daniels v. Adkins, 66 Mo.App. 342; Kansas City v. O'Shea, 69 Mo. 51.

OPINION

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 tenth day of October, less than ten 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 Revised Statutes 1899 are before us for construction in the solution of the questions presented:

"Section 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.

"Section 4074. If the appeal be not allowed on the same day 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.

"Section 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.

"Section 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 ten 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 those preceding, but the argument is advanced that section 4076, being a later enactment repealed the conflicting provisions of the others. Section 4076 first appears in the revision of 1879 as section 3057. Prior to that time, the Supreme Court held that a cause appealed from a justice court was not triable in the circuit court at a term beginning within ten days from the date of the appeal except by consent of both parties. [Knapp v. Skeele, 31 Mo. 434; Nay v. Railroad, 51 Mo. 575.] And without such consent, the cause was to stand continued as a matter of law until the succeeding term which, for the purposes of giving notice by the appellant or of entering appearance by the appellee, was to be treated as the first term at which the cause could be made triable by either party. Unless this rule has been abrogated by the adoption in the revision of 1879 of the section now under consideration, it must follow from its application to the facts of the present case that the motion to affirm was prematurely made and should have been overruled for the reason that the January term, being the first one at which the cause could have been made triable by either party, a motion to affirm the judgment for a failure to give the statutory notice of appeal would not lie at that term. Had the appellee entered his appearance on or before the second day of that term and demanded a trial, the failure of the appellants to appear or their refusal to proceed to trial would have entitled the appellee to an affirmance of the judgment. [Holloman v. Railway, 92 Mo. 284.]

But here the appellee entered no appearance, either general or special, until after the lapse of the second day of that term, nor did he demand a trial, but in the motion filed by him sought an affirmance of the judgment on the ground that appellants had not perfected their appeal according to law. As appellants (under the rule we are considering) had until ten days preceding the beginning of the April term in which to serve their notice of appeal, it is manifest the motion must be held to have been filed prematurely, unless section 4076 is given the effect claimed for it by defendant in error. In the case of Davis v. Schields, 14 Mo.App 397, the St. Louis Court of Appeals, in a well-considered opinion, written by THOMPSON, J., held adversely to the argument of defendant in error. We are impressed with the soundness of that decision and adopt it as the expression of our own views. Section 4076 evidently was incorporated in the revision of 1879, not for the purpose of abrogating the existing rule,...