Dooley v. Missouri Pacific Railway Co.

Henry, J. Plaintiff sued, in a justice court, to recover of defendant double damages for the alleged killing of his horse, by defendant. August 6th, 1881, a judgment by default was rendered in his favor by the justice. August 15th, defendant appeared before the justice and moved to set aside the judgment, which was refused, and, on the 19th, defendant appealed to the circuit court of Monroe county. The first term of said circuit court, after said appeal was taken, was held in October, 1881, and, on the first day thereof, plaintiff entered his appearance, and, defendant having failed to give notice of its appeal, on motion of plaintiff, the court, on the next day, affirmed the judgment of the justice, and the defendant has appealed from that judgment. Sec. 3056 of the Revised Statutes is as follows: “If the appellant fail to give notice of his appeal, when such notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof, or, at his instance, shall be continued as a matter of course, until the succeeding term, at the cost of the appellant.” The following section provides that: “If the appellant shall fail to give such notice, at [105] least ten days before the second term of the appellate court, after the appeal is taken, the judgment shall be affirmed, or the appeal dismissed at the option of the appellee.” The obvious meaning of the first section is, that, if the appellee enter his appearance on or before the first day of the term to which the appeal is taken, the cause shall be triable at that term. No- authority is given to the court by that section, to affirm the judgment, without affording the appellant an opportunity to try the cause. This is made apparent by the succeeding section, which authorizes the court, at the second term, if notice. has not been given of the appeal by the appellant, to affirm the judgment, or dismiss the appeal, at the option of the appellee. . 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 of the judgment, or a dismissal of the appeal, at his option. This is the construction placed upon those sections by this court in repeated adjudications. Nay v. H. & St. J. R. R. Co., 51 Mo. 577; Page v. A. & P. R. R. Co., 61 Mo. 79; Riddle v. Gillespie, 67 Mo. 628. In the case at bar, the appellee entered his appearance on the first day of the term, and without giving appellant any opportunity whatever to establish its defence to the action, or, so far as this record discloses, to be heard in any manner, entered a judgment of affirmance, on the day following. The judgment is reversed and the cause remanded. All concur.