Howell v. St. Louis & San Francisco Railway Co.

BIGGS, J. In a proceeding to revive a judgment before a justice of the peace will an appeal lie to the circuit court ? That is the only question presented by this record. The plaintiff obtained a judgment of revivor before the. justice, the defendant appealed, and on motion of plaintiff the circuit court dismissed the appeal. The defendant has appealed from the order of dismissal. [262] Right of appeal. [261] The statute governing appeals in justices of the peace courts reads: “Any person aggrieved by any judgment rendered by a justice of the peace, except a judgment by [262] confession, may, in person or by agent, make his appeal therefrom, unless otherwise provided by law, to the circuit court of the same county where the judgment was rendered.” * * * R. S. 1889, sec. 6327. The statutory definition of a judgment (R. S. 1889, sec. 2206), is as follows: “A judgment is the final determination of the right of the parties in the action.” A sowe facias to revive a judgment is an action or civil suit (Milsap v. Wildman, 5 Mo. 425; State v. Hoeffner, 124 Mo. 488; Simpson v. Watson, 15 Mo. App. 425; Wolff v. Schaeffer, 4 Mo. App. 367; Kratz v. Preston, 52 Mo. App. 251), and the judgment of revival is treated as a new judgment (Walsh v. Bosse, 16 Mo. App. 231). Under the decisions in the , . _ ,, foregoing cases we think it clear that the defendant had the right of appeal. The appellate courts of the state have recognized such a right. Indeed it has never been questioned. Humphreys v. Lundy, 37 Mo. 320; Barhydt v. Alexander, 59 Mo. App. 188; Kincaid v. Griffith, 64 Mo. App. 673. With the concurrence of the other judges, the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.