Holt v. Varner , 5 Mo. 386 ( 1838 )

McGirk, Judge,

delivered the opinion of the court,

Varner broughfian action before a justice of the peace, The trial took place on the 28th of October, and there was a judgment against Holt; on the 8th of November, he appealed to the justice, and obtained an appeal; when the cause came to the circuit court, the court dismissed the cause, because the appeal was not taken in time.

It is no excuse for failing to take an appeal before a justice within the ten days allowed by law, that the justice was from home during the time, unless it could be made to appear that he was absent during the entire ten days, and that that wasMhe sole cause of the failure.

The statute requires the appeal to be applied for, and taken within ten days after the trial. In this case, ten whole days had passed away, excluding the day of the trial and the day of the appeal. There is, therefore, no pretence the court erred in dismissing the appeal. But it is said by counsel, that there is proof on the record that the justice was from home in the time, and the time for an appeal ought to be allowed after the ten days. He swears he was from home, how long he does not say; and he says he believes the defendant applied during his absence, or would have done so if he had been at home. This affidavit goes for nothing if it were admissible; yet it does not show that the application was made or attempted to be made in the time allowed by law. If the absence of the justice was in truth the reason why the appeal was not taken in time, it is possible the circuit court might afterwards help the party; if it could do ■so, the absence must be total during the ten days. I am oí opinion the judgment of the- court below ought to be affirmed, and the other judges concurring herein, the same is affirmed, with costs.