Blunt v. A. & P. R. R.

Adams,* Judge, delivered the opinion of the court. This was an action commenced before a justice of the peace. The writ of summons was directed to and served by the sheriff of Webster county. The defendant failed to appear, and a judgment by default was rendered against it. The defendant in due time by its attorney appeared only for the purpose of filing a motion to set aside the judgment by default, on the ground that the justice had no jurisdiction over the defendant, because the process was not legally issued and served. The justice overruled this motion, and the defendant appealed to the Circuit Court. In the Circuit Court the defendant again appeared, but only for the purpose of filing a motion to dismiss the cause, because the summons had been directed to and served by the sheriff. This motion was overruled, but no exception was saved to this action of the court. The defendant failed to appear to the action, and judgment was rendered in favor of the plaintiff. The defendant afterwards filed a motion in arrest' for the same grounds, appearing only for that purpose; but the action of the court on this motion was not saved by a bill of exceptions. [158] ' The statute declares, that when an appeal is allowed and the return of the justice is filed in the clerk’s office, “the court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice.” (Wagn. Stat., 849, ■§ 13; 23 Mo., 400.) The effect of an appeal to the Circuit -Court, without anything further, amounts to full appearance to the action in the Circuit Court. But the appellant is allowed by motion in the appellate court to demonstrate the purpose of his appeal, which was done in this case. This motion however was overruled. As no exception was saved to this action of the court, the-defendant must be presumed to have acquiesced in it. In appeals from a justice of the peace, we can only pass upon such alleged errors as were brought to the notice of the court below. The action of that court upon motions can only become a part of the record by a bill of exceptions. I Judgment affirmed. All the judges concur.