Gibbs v. Missouri Pacific Railway Co.

Bakewell, J., delivered the opinion of the court. This is an action begun before a justice of the peace, for damages. The petition alleges that, on February 14, 1880, as plaintiffs’ wagon was approaching on the highway a public-crossing of defendant’s road, defendant carelessly and negligently caused one of its locomotives to approach the-crossing and to pass rapidly over the track-, and omitted its-duty of giving any warning; by reason of all which plaintiffs were unaware of its approach, in consequence of which, the locomotive struck plaintiffs’ wagon, oversetting it and the merchandise it contained, to plaintiffs’ damage $167.10. There was a judgment by default before the justice. Defendant then appeared for the purpose only of moving to set aside the default. The motion was overruled, and defendant appealed to the circuit court, where the judgment was affirmed for failure to give notice of appeal. 1. Appellant contends that the statement of the cause of action is not sufficient to support the judgment. The statement was enough to notify defendant what the suit was about and to bar another action for the same injury. As the cause originated before a justice, this, according to the uniform rulings in this state, is enough. 2. It is further claimed by appellant that the summons is void because it did not apprise the defendant of the nature of the action ; and because the return of the constable does not show that the defendant was properly served. As defendant appealed to the circuit court, there was a com [461] plete waiver of all defects in process, or service of process. Rev. Stats., sect. 3052; Ser v. Bobst, 8 Mo. 506; Blackman v. Cowen, post p. —, and cases cited in that opinion. 3. Appellant contends that, inasmuch as he moved before the justice to set aside the default for defects in process and in the service of process, appearing there specially for that purpose only, the jurisdictional question was saved by the appeal. The truth is that the circuit court does not sit as a court of review to correct errors or irregularities committed in the trial before the justice. If the justice had jurisdiction over the subject-matter, and the parties appear, and an appeal is taken to the circuit court by defendant, though the defendant was never served, and appears only for the purpose of appeal, as in the case at bar, the cause is for hearing in the circuit court, and if the appellant fails to prosecute his appeal there, the circuit court commits no error in affirming the judgment. We are asked to give damages for a frivolous appeal. We are not clear that the appeal is inconsistent with good faith. The judgment is affirmed. Judge Thompson concurs ; Judge Lewis is absent.