American Brass Manufacturing Co. v. Philippi

BLAND, P. J. — On April 15,1902, a judgment in a suit of unlawful detainer was rendered by Justice E. B. Haughton, in the city of St. Louis in favor of plaintiff [50] and against defendant. Two days thereafter the defendant appealed the cause to the; St. Louis Circuit Court and the transcript of the justice was" filed in the-circuit court on April' 21, 1902. The circuit court was-in session during the whole of the month of April. No-notice of the appeal was given by defendant to plaintiff. The cause was not called up until the February térm, .1903, of the circuit court, when, on motion of plaintiff to dismiss the appeal, the’defendant was required to give a good and sufficient appeal bond (the one filed be-before the justice being deemed insufficient) which he did. After' the new bond was filed the plaintiff filed its motion to affirm the judgment of the justice or dismiss the appeal, on the ground that two terms of the court had elapsed and no notice of the appeal had been given. The motion was sustained and the appeal dismissed at the cost of defendant. From this order defendant appealed to this' court. Section 3370, 'article 2, chapter 29, Revised Statutes-1899, of' the forcible entry and detainer acts, provides-that appeals from the justice’s court to the circuit court shall be returnable, if the judgment is rendered in vacation of the circuit court, to the first day of the -next term thereof; but if the judgment of' the justice be rendered during the term of the circuit court, the appeal shall be returnable within six days after the rendition of the judgment. Section 3384 of the act provides that, if the transcript from the justice, is filed in term, time, the cause shall be set for trial on some day during such term,, unless for good cause shown the court shall otherwise direct. Section 3366 of the act provides that when a cause-shall be taken to the circuit court under the provisions of this article, notice thereof shall be given as of appeals from justices,’ courts. Prior to the revision of 1889, no notice of an appeal from the judgment of a', justice in an unlawful de [51] tainer suit or for forcible entry and detainer, was required. The effect of section 3366, supra, is to import into the unlawful detainer act, section 4074 (chap. 43, art. 10, R. S. 1899), and to require the appellant to give at least ten days’ notice ef his appeal, if the appeal be taken upon any day other than the day on which the judgment was rendered. No notice of the appeal was given in this case. The appellant contends, that inasmuch as section 3370, supra, required him to have the transcript filed in the circuit court within six days after the rendition of the judgment, the cause was returnable within six days to the April term, 1902, of the circuit court, and that it was a physical impossibility for him to give ten days’ notice of appeal before the return term thereof, and that sections 3370 and 4074, supra, are irreconcilable. If it is possible to harmonize these sections and to give effect to the legislative intent as expressed in them without doing violence to the language of either section, it is the duty of the court to enforce them both. State v. Heman, 70 Mo. 441; Cole v. Skrainka, 105 Mo. 303; Kane v. Railway, 112 Mo 34. We think this naay be done. The appeal when taken in, vacation of the circuit court is returnable to the first day of the succeeding -term. An appeal taken during the session of the circuit court is made returnable to the term, not to a particular day of the term, and the cause can not be entered on the docket of the term except by an order of the court and when so docketed it can not be set for trial on any day of the term, unless ordered' to be so set by the court. Section 3370, supra, does not say on what day of the term the cause shall be set for trial, but only that it shall be returnable at that term, thus leaving it to the discretion of the court to name the day the cause shall be set for hearing and when the appellee shall be required to appear and answer to the suit. In other words, it is left to the court to name the particular day of the term to which the' cause is in fact returnable. The practice is, when the attention of the court is called to the matter [52] by the appellant by asking leave to have the cause docketed (which he is bound to do, if he prosecutes his appeal with due diligence) for the court to name a day for the trial of the cause. It is, therefore, an easy matter to set the cause ahead so as to allow ten days’ notice of the appeal if the appellee demands it. In this view of the procedure, there is no practical difficulty in complying with the statute requiring ten days’ notice of the appeal, whether taken in term time or in vacation of the circuit court. The spirit of the forcible entry and detainer act requires prompt action and a speedy trial and we think the statute- requiring notice of appeal should be construed in harmony with the spirit of the act and that notice should be speedily given after the appeal is perfected. . 2. The penalty prescribed by section 4076 (chap. 43, art. 10), to the effect that the judgment may be affirmed or the appeal dismissed for failure of the appellant to give notice of the appeal at least ten days before the second term after the appeal is taken, is not expressly carried into the forcible entry and detainer act by section 3366, supra, nor by any other section found in that act; being a penal statute, it can not be imported into the chapter by implication. State v. Bryant, 90 Mo. 534; State v. Gritzner, 134 Mo. 512; State v. Murlin, 137 Mo. 297. The spirit of the unlawful entry and detainer act seems to us to be opposed to so long a delay before the court may in the exercise of a sound discretion dismiss the appeal for want of prosecution and that the, appellee is not bound to wait that length of time before he may successfully move to have the appeal dismissed for want of prosecution. Section 3387 of the act, among other things, provides that if the appellant shall not prosecute his appeal, it may be dismissed. This section can have no other meaning than that the appellant shall prosecute his appeal with diligence from the day he takes it to a final termination, and if he fails to do so, the court, in the exercise of its judicial discretion, may [53] dismiss it on-the motion of the appellee at the first term at which it is returnable as well as at any subsequent term. 3. The appeal slept in the office of the clerk of the circuit court from April, 1902, until February, 1903, and would perhaps have slept on until doomsday had it not been called up by the appellee’s motion to dismiss. Appellant took no steps whatever, after perfecting his appeal, to prosecute it in the circuit court. He clearly violated the law which permitted him to take the appeal, in failing to prosecute it, and has ho ground to complain because his appeal was dismissed. The judgment is for the right party and is affirmed. Goode and Reyburn, JJ., concur; the former in a separate opinion.