Warner v. Donahue

• Citation: 72 S.W. 492,99 Mo. App. 37
• Parties: WARNER v. DONAHUE et al.
• Decision Date: 17 February 1903
• Court: Missouri Court of Appeals

72 S.W. 492

99 Mo. App. 37

WARNER v. DONAHUE et al.

Court of Appeals at St. Louis, Missouri.

February 17, 1903.

FORCIBLE ENTRY AND DETAINER — JUSTICE'S JUDGMENT — APPEAL — TIME LIMIT — TERMS OF COURT — COMPUTATION OF TIME — SUNDAY.

1. Under Rev. St. 1899, §§ 1699, 1731, providing that the Thirteenth judicial circuit shall be composed of the county of St. Louis and three other counties, and that a term of the circuit court shall be held in one of the other counties on the first Monday in December, in one on the second Monday in December, and in the third on the third Monday in December, the judge of the circuit court of St. Louis county adjourned its September term from November 30th to December 30th in order to hold court in the other counties of his circuit. Held, that such adjournment did not terminate the September term of the St. Louis county circuit court, so that under section 3370, providing that an appeal from a justice's judgment in forcible entry shall be returned within six days from the rendition of the judgment if the judgment is rendered in term time, the return day of an appeal from a justice's judgment in St. Louis county during the time when the judge of the circuit court was holding court in one of the other counties was within six days from the rendition of the judgment.

2. Under Rev. St. 1899, art. 2, § 4160, subd. 4, providing that the time within which an act is to be done shall be computed by excluding the first day and including the last, etc., Sunday is to be included in computing the time within which an appeal from a justice's judgment in forcible entry and detainer shall be taken.

3. Rev. St. 1899, §§ 3381, 3382, require appellant from a justice's judgment in forcible entry and detainer to file a certified transcript of the record before the return day of the appeal, and provide that, if he fails to do so, appellee may produce such transcript, and the court shall affirm the judgment, except for good cause shown. An appellant failed to file his transcript within the time limited, and the appellee moved to dismiss the appeal as not taken in time. Held, that appellant could not show good cause for his default, so as to justify the court in overruling the motion to dismiss, but, as the appeal had never been perfected by either party, the court was without jurisdiction thereof.

Appeal from circuit court, St. Louis county; J. W. McElhinney, Judge.

Action by George W. Warner against Mary Donahue and others. From a judgment for plaintiff, defendants appealed to the circuit court, and from an order granting a motion to dismiss the appeal they further appeal. Affirmed.

The action is unlawful detainer, commenced before a justice of the peace of St. Louis county. The cause was tried before the justice on December 3, 1901. The justice took it under advisement, and on the 6th day of December, which was Friday, gave judgment for plaintiff. At 6 or 6:30 o'clock p. m. on the 12th day of December, defendants filed with the justice their affidavit and recognizance for an appeal, and demanded a transcript of the proceedings before the justice. The justice approved the recognizance, and allowed the appeal, and on the succeeding day furnished defendants a certified transcript of the proceedings before him, which, with the affidavit, recognizance, and other papers, the defendants filed in the office of the clerk of the circuit court on the same day. Plaintiff filed the following motion to dismiss the appeal (omitting caption): "Comes now the plaintiff in the above-entitled cause, being now the respondent therein, and moves the court to dismiss the defendants' appeal, for the following reasons: Because said cause, being a cause of action originating and having been tried before the justice from whom the appeal was taken under the forcible entry and detainer act, and having been tried and judgment rendered therein during the term of this court, as shown by the transcript filed in said cause and by the records of this court, and the appeal taken by the defendants not having been taken and the transcript returned to this court within six days after the date of the judgment appealed from, this court acquired, and now has, no jurisdiction in said cause of action." To sustain the motion, plaintiff read in evidence the following stipulation: "It is admitted that on the 30th day of November, 1901, the September term of the circuit court of St. Louis county, Missouri, adjourned until the 30th day of December, 1901; that during the month of December, 1901, the judge of the circuit court of St. Louis county, Missouri, was engaged in holding the circuit courts of Osage, Gasconade, and Franklin counties, Missouri, and completed his work in these counties on the 21st of December, that year; that on the 30th day of December, 1901, the circuit court of St. Louis county was convened, pursuant to adjournment, and from the 30th day of December, 1901, until the adjournment of the September term of said circuit court of St. Louis county to court in course, which was on Saturday, January 11, 1902, the said circuit court of St. Louis county was solely engaged in the trial of criminal cases, and that during said period of time no civil cases were tried or set for trial." Defendants offered the following evidence: First. That the 6th day of December, 1901, was on Friday. Second. The evidence of John Donahue, one of the defendants, who testified, in substance: That he went to the justice's office December 12th, about 6 p. m.—not later than 6:30 p. m.—and demanded a transcript to be filed in the office of the clerk of the circuit court, and the justice said to him that "he couldn't possibly get it for me that evening. It would take him two hours to do it; and he said to me that he would file the papers himself; and I insisted on having the papers, and explained to him that it was necessary for me to have them; and he finally went and got a book, and showed me that he was supposed to file the appeal; and he got his book out, and he said I was right; that we were supposed to file the appeal. So I told him we would like to have it right away; and he said I should not be in a hurry; that we had got six days from this time, which would be six days after the 12th of December." That he went back to the justice's office on the next day, and got the transcript and other papers, and filed them with the clerk of the circuit court. That he told the justice that his counsel advised him that the transcript should be filed with the clerk on the 12th. George L. Edwards, defendants' counsel, testified as follows: "I will state to the court that when this case was tried before the justice of the peace he held his court in a place called Georgetown, two or three miles south of Kirkwood; that at the conclusion of the trial I asked the justice, after he announced that he was going to take the case under advisement, if he would write me...