S. Sigaloff v. Independent Breweries Companies
| Decision Date | 17 May 1910 |
| Citation | 128 S.W. 523,148 Mo.App. 452 |
| Parties | S. SIGALOFF, Respondent, v. INDEPENDENT BREWERIES COMPANIES et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED.
Judgment affirmed.
Claud D. Hall for appellants.
(1) An order affirming a judgment of a lower court without a trial de novo, for mere failure of the appellant to appear can only be based on a statute. State v. McCarthy, 4 R. I 867; 3 Cyc. 412. 1. There is no statute authorizing such affirmance. Section 4075 of the Revised Statutes 1899, does not apply, because, (a) The defendant gave notice of the appeal. Holloman v. Railroad, 92 Mo. 286. (b) Plaintiff did not enter his appearance in said cause on or before the 2d day of the term. Mumma v. Staudte, 24 Mo.App. 473; Smith v. Railroad, 20 Mo.App. 689; Fisher v. Anderson, 101 Mo. 469. (c) Plaintiff (appellee) did not demand a trial as provided by section 4075. There is nothing in the order affirming the judgment of the justice, or elsewhere in the record, showing that the plaintiff demanded a trial. 2. Section 1557, R. S. 1899, is no authority for the affirmance of a judgment without a trial. This provision means that to prosecute an appeal according to law, the appeal should be filed, the filing fee paid and notice of appeal given. In other words, it only refers to the necessary steps to place the case in the circuit court for trial de novo. Meitz v. Koetter, 51 Mo.App. 370. 3. Section 4071, R. S. 1899, requires a trial de novo. 3 Cyc. 260; State v. McCarthy, 4 R. I. 86 4. Section 4073, R. S. 1899, provides that all appeals shall be tried and determined at certain times, etc. 5. The appeal being properly filed, docketed, and the notices of same having been given, the judgment of the justice was vacated and there was no judgment to affirm. Sublette v. Railroad, 96 Mo.App. 122; Carrollton v. Rhomberg, 78 Mo. 547; Turner v. Northcut, 9 Mo. 249; State v. McCarthy, 4 R. I. 86. (2) The refusal of the court to set aside the order affirming the judgment, in view of the circumstances as set forth in the defendant's application and motion to set aside the order affirming the judgment, was an abuse of discretion and judgment, and for that reason this court should reverse the judgment of the lower court. Stout v. Lewis, 11 Mo. 438.
Jno. B. Dempsey and R. G. Meigs for respondent.
(1) An appellee, in a cause appealed to the circuit court from a justice of the peace, is entitled, where the cause is for trial, and the appellant fails to prosecute his appeal, to a judgment of affirmance, and he is entitled to such affirmance whether the cause is for trial at the demand of either party or at the option of the appellee only. Holloman v. Railroad, 92 Mo. 284; Chadbourne v. Hageman, 7 Mo.App. 561; Kain v. Touhey, 80 Mo.App. 350. (2) Defendant gave due notice of its appeal and therefore it was not incumbent on plaintiff to enter his appearance on or before the second day of the (April) term. Secs. 4074, 4075, R. S. 1899. (3) Where the record of the trial court is silent, uncertain or indefinite, all presumptions are in favor of the judgment of a court of record. Bearden v. Miller, 54 Mo.App. 201; In re Tucker, 74 Mo.App. 334; Murphy v. De France, 105 Mo. 62; State ex rel. v. Bank, 120 Mo. 168. (4) The prosecution of an appeal from a justice court "according to law" means that the appeal shall be filed, the notice given, the filing fee paid, all of which are preliminary matters, but the word appeal refers not merely to preliminary steps, but to the action on appeal, which the appellant is bound to appear to and prosecute. Chadbourne v. Hageman, 7 Mo.App. 561; cited in Kain v. Touhey, 80 Mo.App. 353; Holloman v. Railroad, 92 Mo. 284. (5) The motion to set aside the affirmance does not state facts showing diligence. Gullett v. Swinney, 61 Mo.App. 226; Pry v. Railroad, 73 Mo. 123; Wilson v. Scott, 50 Mo.App. 329. The motion must both show diligence and meritorious defense. Hoffman v. Lauden, 96 Mo.App. 184; Robyn v. Chronicle Pub. Co., 127 Mo. 385; Hulbert v. Tredway, 159 Mo. 665. The meritorious defense means a statement of facts relied upon from which the court may itself judge the question of merit. Lamb v. Nelson, 34 Mo. 503; Carr v. Dawes, 46 Mo.App. 358. It is an abuse of discretion for the court to set aside a judgment without a showing of diligence and meritorious defense. The right to set aside judgment is not an absolute one. Carr v. Davis, 46 Mo.App. 358; Arnold v. Palmer, 23 Mo. 411.
The principal question in this case relates to the action of the circuit court in affirming a judgment of a justice of the peace for the failure of appellant to prosecute his appeal theretofore perfected to the circuit court. It appears plaintiff instituted the suit before a justice of the peace and upon the trial recovered judgment against the defendant on March 16, 1909. From this judgment, the defendant perfected an appeal to the circuit court on March 24, 1909, which was more than ten days before the first day of the next, or April term. In due time, the transcript of the justice of the peace, together with the original papers in the case, was filed in the office of the circuit clerk and defendant paid the filing fee as required by statute. On March 25, and more than ten days before the first day of the April term of the circuit court, defendant served a proper notice of appeal on the plaintiff which was subsequently duly returned and filed among the papers of the case. The case was properly set on the docket of the April term of the circuit court for trial on the 24th day of May. During the term and on the 24th day of May, when it was reached, plaintiff appeared and answered ready for trial, but defendant, although three times duly called, did not respond to prosecute the appeal. Thereupon plaintiff moved the court to affirm the judgment of the justice, which motion the court sustained and in all things affirmed the judgment of the justice of the peace. On the following day defendant's counsel appeared and moved the court to set aside its judgment theretofore given, affirming the judgment of the justice, and to reset the case for trial. This motion was overruled and the present appeal is prosecuted by defendant on the theory that the judgment of the circuit court affirming that of the justice of the peace was given without authority of law. It is argued that as no authority resides in the circuit court for summarily affirming a judgment of a justice of the peace on motion without hearing the proof, except in those instances specifically authorized by the statute, the court erred, for the reason no such statutory power is conferred over the particular facts of this case. We are not so persuaded. Our statute, section 4073, Revised Statutes 1899, section 4073, An. St. 1906, touching appeals in civil cases from justices of the peace provides that "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." The appeal in this case was granted by the justice more than ten days before the next succeeding or April term of the circuit court and was therefore returnable to that term. The statute quoted conferred complete power on the circuit court to determine the appeal at the term mentioned. There can be no controversy over this matter. Indeed, so much is conceded; but defendant argues that although the appeal was granted more than ten days before the term and that he paid the filing fee, caused the transcript of the justice to be filed in the circuit court and the case was properly placed upon the docket of that term for hearing May 24th, the court was not possessed of authority to summarily affirm the judgment of the justice without a trial de novo. Section 4074, Revised Statutes 1899, section 4074, An. St. 1906, provides that if the appeal is not allowed on the same day on which the judgment of the justice of the peace is rendered, the appellant shall serve the appellee at least ten days before the first day of the term of court at which the cause is to be determined with a notice of appeal, etc. Acting under this section, defendant properly served plaintiff with a notice of appeal on March 24th, which was more than ten days before the first day of the April term. Section 4075, Revised Statutes 1899, section 4075, An. St. 1906, provides substantially that if the appellant fails to give notice of his appeal as 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 at his instance as a matter of course until the succeeding term. And after so providing, that section concludes as follows: "When, however, the appellee enters his appearance and demands a trial as provided for by this section and the appellant fails to appear, the judgment on motion of appellee shall be affirmed." In this case, it appears plaintiff, who was appellee in the sense of the statute, omitted to enter his appearance in the circuit court on or before the second day of the term. In view of this fact, the argument proceeds on the statutes mentioned to the effect that the circuit court was without power to summarily affirm the judgment of the justice. It is said that if plaintiff had entered his appearance on or before the second day of the term under the statute last referred to, the judgment of the circuit court affirming that of the justice of the peace would have been competent and proper; but it appearing he omitted to do so, no authority in support of the judgment is conferred by that statute. If this statute were the source of the authority for the...
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