Deatley v. Potter

Ellison, J. This is a suit on an account and originated in a magistrate’s court. Plaintiff obtained judgment in that court,' and defendant, on a day subsequent to that on which the judgment was rendered, appealed to the circuit court, the next sitting of which was more than ten days subsequent to the appeal. No notice of this appeal was given to plaintiffs, but they, nevertheless, entered their appearance on or before the second day of the term, and the cause was continued by the court to the following term. At this latter term, no notice of the appeal being yet given, plaintiffs filed a motion to affirm the judgment of the justice, “upon the ground of the failure of defendant to prosecute his appeal, in not having given notice of appeal either at the return or succeeding term of the circuit court.” The motion was overruled and both parties entered upon a trial of the cause on the merits. Judgment being given for defendant, plaintiffs appealed to this court, assigning as sole error, the refusal of the court to sustain their motion to affirm the judgment of the justice. When appellees, plaintiffs herein, entered their appearance in the circuit court, notice of the appeal was thereby dis [226] pensed with. If an appellee enters his appearance, the case stands, “in effect, as though notice had been given.” Talbot v. Hore, 17 Mo. App. 175. “A party, if he chooses, may voluntarily appear in court, and he will then be subject to the same jurisdiction as if he had been brought in by notice or regular process.” Page v. Railroad, 61 Mo. 78. In that case it was held that subpoenaing witnesses in a cause was a sufficient act on the part of appellee to waive notice of the appeal. But plaintiffs rely for a reversal of this cause on the cases of Dooley v. Railroad, 83 Mo. 103, and Priest v. Railroad, 85 Mo. 521. The latter case does not present the question involved here. That case holds that, where there is no notice and the appellee enters his appearance at the first term, he can have a trial at that term, but cannot, on motion, have the judgment affirmed at that term. The dissenting judge in that case thought the judgment could be affirmed because the appellant failed to “prosecute his appeal with due diligence to a •decision,” in that, though the cause was for trial at that term (from the fact that the appellee had entered his appearance), yet appellant failed to appear and prosecute his appeal, thereby bringing himself under section 1000, Revised Statutes. The case in 83 Mo., supra, does contain a remark bearing out the contention of plaintiff; but the point contested and deci-ded in that case was the appellee’s right to have the judgment affirmed on motion at the first term. And it is said, at page 105, that, “At the .second term, if appellant has not given notice of his appeal, and appellee entered his appearance on or before the second day of the term to which the appeal is taken, appellant has no right to be heard, no right to a trial, but the appellee is entitled to an affirmance,” etc. The ■case has possibly been misreported, or if not, the words, “has not,” have been inadvertently omitted between the words, “appellee” and “entered his appearance,” etc. That the expression was not meant as [227] reported, is shown by the fact that the authorities cited sustain the view we take of this case. The judgment, with the concurrence of the other judges, is affirmed.