Blakely v. Missouri Pacific Railway Co. , 79 Mo. 342 ( 1883 )

Norton, J.

It appears from the record in mis case that the suit was commenced before a justice of the peace,, and that on the 11th day of August, 1880, the defendant failing to appear, judgment by default was rendered for plaintiff, that within ten days thereafter defendant filed a motion to set aside the judgment, which being overruled defendant on the same day appealed to the circuit court of Buchanan county, which appeal was returnable to the term of said court beginning on the first Monday in September,, 1880. The record does not show that any notice of this appeal was given, nor does it show that plaintiff, who was. appellee, entered his appearance on or before the second day ,of said September term, but it shows that on the 27th day of September judgment by. default was rendered against defendant, and that the attention of the court was specifically called in the motion for new trial to the fact that the trial was had without any entry of the appearance of the appellee, as required by law, and without any notice of the appeal having been given. It has been held by this court that when an appeal from the judgment.of a justice of the peace is not taken on the same day that it was rendered, and no notice of such appeal is given, it cannot be tried at the first term of the appellate court unless by the consent of both parties, or unless the appellee shall enter his appearance on or before the second day of such term. Nay v. Hann. & St. Jo. R. R. Co., 51 Mo. 575; Blake v. Downey, 51 Mo. 437; Transier v. St. Louis, K. C. & N. R’y Co., 54 Mo. 189.

Eor the error committed m this respect, the judgment will be reversed and cause remanded.

All concur.