Woodward v. Redden

• Decision Date: 09 February 1909
• Parties: WOODWARD v. REDDEN et al.
• Court: Missouri Court of Appeals

116 S.W. 33

135 Mo. App. 541

WOODWARD v. REDDEN et al.

St. Louis Court of Appeals. Missouri.

February 9, 1909.

1. JUSTICES OF THE PEACE (§ 179) — APPEAL — TRIAL DE NOVO — VERDICT.

Ann. St. 1906, § 4080, authorizes a case appealed from a justice to be tried in the circuit court by a jury of 6. Const. art. 2, § 28 (Ann. St. 1906, p. 162), authorizes a jury of less than 12 in courts not of record, and provides that a two-thirds majority may render a verdict in all civil cases, but that in the trial of such cases in courts of record a three-fourths majority shall be required to render a verdict. Held, that a verdict in a case appealed from a justice to the circuit court, must be agreed to by three-fourths of the jury.

2. JUSTICES OF THE PEACE (§ 152) — APPEAL — PARTIES.

The affidavit for an appeal from a justice was made by but one of the two defendants; he stating that he believed "appellants" were injured by the judgment. The appeal recognizance was signed by both, and recited, which was admitted to be a clerical error, that "plaintiff" had appealed. It further recited that the signers would be bound if the justice's judgment was affirmed, or if judgment was given against "appellants," or that, if the appeal should be dismissed, "they" would pay the justice's judgment. Both defendants appeared in the circuit court for trial. Held, that the appeal was taken by both defendants.

3. JUSTICES OF THE PEACE (§ 157) — APPEAL — DEFECTIVE RECOGNIZANCE.

Where, on appeal from a justice, the affidavit or the recognizance was defective, a valid one can be supplied, under Rev. St. 1899, § 4072 (Ann. St. 1906, p. 2216).

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Action in a justice's court by W. F. Woodward against W. S. Redden and one Calhoun. Plaintiff had judgment, and there was an appeal to the circuit court, where plaintiff again had judgment against Calhoun, but dismissed as to Redden, and Calhoun appeals. Reversed and remanded.

Russel & Deal, for appellant. H. C. O'Bryan, for respondent.

GOODE, J.

This action was begun before a justice of the peace to recover the value of two hogs, alleged to have belonged to plaintiff and to have been converted by defendants. Plaintiff had judgment in the justice's court, and an appeal was taken to the circuit court, but whether by both the appellants or only one is in dispute. The trial in the circuit court was by a jury of six men, and a verdict signed by four of them was returned against the defendant Calhoun; plaintiff having dismissed in said court as to the other defendant Redden. This verdict is said to be a nullity because it was concurred in by only two-thirds of the jurors. The statutes permit a cause appealed from a justice of the peace to be tried in the circuit court by a jury of six men. Ann St. 1906, § 4080. Section 28 of the Bill of Rights, as amended at the general election November 5, 1900, allows a jury of less than 12 men for the trial of civil and criminal cases in courts not of record, and says two-thirds of the number prescribed by law may render a verdict in all civil cases, but that in the trial of all civil cases in courts of record three-fourths of the members of...