Gordon v. Scott & Mudge

Ryland, J,j delivered the opinion of the court. This case comes fully within the principles decided by this court in the case of Hardison vs. steamboat Cumberland Valley. It involves the authority of the circuit court to affirm a judgment of a justice of the peace, on which an appeal has been taken, but in which the appellant had omitted to have the transcript of the justice filed, either by attending to it himself or by causing the justice of the peace to file it. It appears, in this case, that the appellants’ counsel had paid to the clerk of the court, at the beginning of the term to which the appeal was taken, the jury fee, but had received it back again at the end of the term. [254] About a year after the appeal was taken, the appellee, below, filed in the circuit court, a transcript of the record and proceedings, had before the justice of the peace, paid the jury fee and moved the court to affirm the judgment, and the' court sustained said motion. This act of the court is the cause of complaint before us. We shall not disturb the judgment below. This case falls fully within the decision made by this court in the above case of Hardison vs. steamboat Cumberland Valley, 13 Mo. R. 226, to which we refer for the settlement of the case. It will not answer, for the appellants to content themselves by looking, at each term, at the calendar of the cases set for trial, and finding no trace of their appeal, to do nothing further. They knew, when they made the application for the appeal, whether it was granted them or not; and not finding any notice of it on ¡the docket, their remedy was to apply for a rule on the justice: See § 15 art. VIII, Justices’ Courts, Digest 1845, page 670. "Upon an appeal being made and allowed, the circuit court may, by rule and attachment, compel a return, by the justice, of his proceedings in the suit, .and of the papers required to be by him returned.” The appellants had but to make their motion to the court, had they been anxious to have a trial anew, and they could have compelled the justice to file the appeal: but, to await for a year, without doing any thirig more than to pay the jury fee at first, and then take it back, and to watch the docket, and see if the appeal had been filed, is not that kind of diligence favored by the law. The other judges concurring, the judgment below is affirmed.