Purcell v. Hannibal & St. Joseph Railroad , 50 Mo. 504 ( 1872 )

Bliss, Judge,

delivered the opinion of the court.

The defendant appealed from a judgment of a justice of the peace, but failed to notify the plaintiff; and the cause being continued at the first term of the appellate court, the judgment was affirmed at the next term for want of notice. No notice had ever been given, and there was no appearance by the plaintiff except for the purpose of obtaining an affirmance of the judgment.

The facts of the case are precisely the same as in Rowley v. Hinds, ante, p. 403, where we held that an appearance to obtain an affirmance of the judgment was not such appearance as would waive or imply notice, and that a continued failure to give it was a failure to prosecute. The present record shows a rule of the trial court authorizing an affirmance of the judgment under the circumstances. If the rule was contrary to the law, it could not legalize any action under it, but it only affirms the statute, and is therefore valid.

Counsel suggest that the court has no jurisdiction of the case until notice ; but the appeal and the statute give jurisdiction, and the appellant authorized the judgment, which will be affirmed.

The other judges concur.