Jones v. National Candy Co.

REYNOLDS, P. J. Commencing his action,-by next friend, before a justice of the peace, plaintiff, a minor, about sixteen years and seven months of age at the time of the accident, still under age when his action was brought, recovered a judgment against the defendant, National Candy Company, for $75, from which the defendant appealed to the circuit court. In the circuit court the defendant challenged the petition or statement as not stating facts sufficient to constitute a cause of action. This was overruled, and at the conclusion of the testimony for plaintiff, defendant asked leave to dismiss its appeal. Plaintiff resisting the application, the court denied it and defendant put in its evidence, with the result that plaintiff recovered a judgment for $250, from which judgment defendant has duly appealed to our court. It is contended here that the circuit court erred In refusing to allow the defendant to dismiss its appeal from the judgment of the justice of th,e peace. The decisions in Williams v. Lewis, 47 Mo. App. 657, and Butler v. Pierce, 115 Mo. App. 40, 90 S. W. 425, are relied upon by plaintiff as against this. A careful consideration of those cases as well as of the underlying reasons given in In re Howard’s Estate, 128 Mo. App. 482, 106 S. W. 116; Pullis v. Pullis, 157 Mo. 565, 1. c. 591, 57 S. W. 1095; Kain v. Tuohy, [703] 80 Mo. App. 350; Sigaloff v. Independent Breweries Companies, 148 Mo. App. 452, 128 S. W. 523, leads ns to conclude that it was error to refuse to allow the defendant to dismiss its appeal. By asking to dismiss its appeal from' the judgment of the justice, the defendant in fact and in law abandoned that appeal just as completely as if it had failed to prosecute it, and it thereby was within the power as well as the duty of the court to have affirmed the judgment of the justice. Butler v. Pierce, supra, hardly meets this case on its facts. Following the application of the defendant to dismiss its appeal, which, as held in Williams v. Lewis, supra, 1. c. 659, “would only amount to a declaration by the defendant that he was unwilling to prosecute his appeal,” the court should have entered up judgment of affirmance of the judgment of the justice under the statute, against the defendant and its sureties on its appeal bond. [See also Holloman v. St. L., I. Mt. & S. Ry. Co., 92 Mo. 284, 5 S. W. 1.] It is true that after its motion to dismiss its appeal was overruled, defendant put in its evidence. But as it was forced 'to that by the ruling of the court on its application to dismiss, we do not think that it should be held to have waived its application to dismiss. The judgment of the circuit court is reversed and the cause remanded with directions to that court to enter up a judgment affirming that of the justice and awarding judgment against defendant and its sureties on its appeal bond given in the justice’s court for the amount of the justice’s judgment, interest and costs'. Nortoni and Allen, JJ., concur.