Young v. School District
| Decision Date | 04 June 1906 |
| Citation | 95 S.W. 947,119 Mo.App. 108 |
| Parties | DELLA YOUNG, Respondent, v. SCHOOL DISTRICT et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
AFFIRMED.
Judgment affirmed.
Allen Nichols & Neville and Samuel S. Shull for appellant.
(1) The defendant was guilty of no laches for which he should be punished. He took his appeal, gave bond which was approved. Only the justice was in default in performing his duty. (a) The monstrous wrong done defendant appears from the record. The plaintiff had judgment for $ 280, being for the full term from Sept. 5, 1904, to March 23, 1905, seven months, at $ 40 per month and she had served but one month of the time when suit was filed. (b) The defense that is to be made in this case does not appear from the record--the defense that the plaintiff had no certificate to teach issued from any authority--that she represented that she had such certificate till it was finally demanded from her when she desired to draw her first month's salary, then the facts became known for the first time. (2) The only authority for an appellate court to affirm a judgment of a justice court would have to be based on some default of the appellant. He must be guilty of not prosecuting his appeal according to law. This appellant was not so in default. The case was not due for trial before the May term, and the order of affirmance was made at that term. R. S. 1899, sec. 1557. Construed in Holloman v. Railroad, 92 Mo. 284; Meitz v Koetter, 51 Mo.App. 370; Westpheling v. Enright, 60 Mo 279.
William A. Banister for respondent.
(1) Appellant was guilty of great laches, as he had every legal remedy at his command for months. R. S. 1899, secs. 4069, 4070; Holloman v. Railway, 92 Mo.App. 284; Horn v. Excelsior Springs Co., 52 Mo.App. 548; Davis v. Miller, 35 Mo.App. 254; Stearn v. McCullough, 18 Mo. 411; Brownsville v. Rembert, 63 Mo. 393. (2) Neglect or failure on the part of the justice of the peace, did not release him from his obligation to prosecute without delay and with diligence. Studer v. Railroad, 26 Mo.App. 349; Wilson v. Ryan, 15 Mo.App. 597; Cooksey v. Railroad, 17 Mo.App. 132. (3) R. S. 1899, sec. 1557, made it mandatory upon the court to sustain the motion from the facts presented.
--Plaintiff brought this action before a justice of the peace and on November 26, 1904, recovered judgment. On the same day defendants filed their affidavit and bond for appeal and the appeal was allowed. The next term of the circuit court to which the cause was appealed began on the first Monday of January, 1905, and the succeeding term on the first Monday in May following. No transcript of the proceedings, etc., was filed by the justice in the circuit court as required by law (Revised Statutes 1899, sec. 4069) nor did the appellants apply to the circuit court to issue an attachment and rule on the justice to compel him to make a return of his proceedings (Revised Statutes, section 4067). On May 27, 1905, and during the May term the appellee filed a motion for such attachment and rule. This motion was sustained and on June 15th the order was obeyed by the successor in office of the justice who tried the cause. The certificate filed, among others, contained the statement "that the justice of the peace who tried said cause resigned his office after the trial . . . and when the docket and papers aforesaid came into my hands it was too late under the law for me to allow said appeal to January term of appellate court, they not coming into my hands until some thirty days after the trial aforesaid."
On June 16th appellee filed a motion to affirm the judgment on the ground that appellants had failed to prosecute their appeal with due diligence. On the hearing of this motion, the judgment was affirmed and defendants appealed.
As the appeal was granted by the justice who tried the cause on the day the judgment was rendered, no notice of appeal was necessary, but, regardless of the matter of notice, the appellants were charged with the duty to "prosecute their appeal with due diligence to a decision." [Revised Statutes 1899, sec. 4060.] And a failure to perform this duty gives an appellee the right to have the judgment affirmed on proper motion. [R. S. 1899, sec. 1557.]
The Supreme Court said in Westpheling v. Enright, 60 Mo 279, "It is obvious that the phraseology of the statute concerning the duty of appellant to prosecute without delay is simply another form of requiring him not to be in default," and the controlling question arising from the facts before us is this, were the appellants in default in the performance of a duty imposed upon them...
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