Bensberg v. Turk

Ellison, J. Section 3055, Revised Statutes, 1879, relating to notice of appeal from a justice of the peace, is as follows: “If the appeal be not allowed on the same day on which the judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an appeal has been taken from the judgment therein specified. "The notice may be served in like manner as an original writ of summons, or by delivering a copy of the same to the appellee, by any person competent to be sworn as a witness, and when the appellee does not reside in the county, and has no agent in the suit therein within the knowledge of the justice, the [233] service may be by leaving a copy of such notice with the justice.” Our opinion is that, when the appellee does not reside ' in the county where the suit is pending, service of notice of appeal may be had upon his attorney and that such attorney is the agent within the meaning of the foregoing section. In Fuller v. McClure, 25 Mo. App. 418, this court decided that, when the appellee resided in the county, service on his attorney was not sufficient. In Jordan v. Bowman, 28 Mo. App. 608, the St. Louis Court of Appeals decided that service of notice on the attorney was not sufficient. But in that case the appellee resided in the county. The court uses quite general terms in speaking of the right to serve the attorney, but it will be noticed that they are qualified by reference to that portion of the statute quoted by the court which does not cover the part applicable to this -case. The point is made by respondent that the sheriff ’ s return is not evidence of service of the notice. Whether this be true or not, it will be seen by reference to the evidence introduced by respondent, on his motion to quash the return, that service of the notice was made, and the objection is that it was not made on the party required by the statute, i. e., on the agent of the respondent. As before stated, we think an attorney is the agent in the meaning of the statute and the only matter left for decision is whether James H. Ringo was shown to be the attorney. We think he was so shown by the evidence aforesaid, introduced by respondent on the motion to quash. That evidence shows that Ringo was respondent’s attorney in the cause, not alone in the magistrate’s court, but “in the courts of Buchanan county, Missouri.” The whole evidence, including respondent’s letter, shows Ringo to have been the attorney after the trial in the justice’s court as well as before. [234] The suggestion that the judgment should be affirmed for the reason, as is stated by respondent, that the suit is on a judgment rendered against defendant and others, while only defendant is sued, will not be considered, as such matter does not appear in the abstract of the record presented. The judgment will be reversed and the cause remanded. All concur