Horton v. St. Louis, Iron Mountain & Southern Ry. Co. , 83 Mo. 541 ( 1884 )

Norton, J.

This suit was instituted before a justice •of the peace in St. Prancois county, to recover double •damages for the alleged killing of plaintiff’s cow. On the 17th of April, 1882, plaintiff obtained judgment by default, from which the defendant, (according to the record before us) without first making a motion to set aside the judgment by default, on the 21st of April, 1882, appealed to the circuit court, which appeal was returnable to the May term, 1882, of said court. There having been no notice of said appeal, plaintiff and appellee on the second day of said term entered his appearance, and by leave of •court amended his statement, whereupon defendant, ¡also, appeared and filed a motion to strike out the ¡amended statement which was overruled; whereupon ■defendant withdrew from the case, and the court, on plaintiff’s motion, affirmed the judgment of the justice .and rendered judgment for $55.20.

Prom this judgment defendant appeals, and as no motion for new. trial was made, we can only look to the record proper for the discovery of error, and the only •one that appears, which we deem it necessary to consider is that the judgment shows on its face that it is for $55.20, which is $5.20 in excess of the amount of damages claimed by plaintiff in his statement, and as the measure •of plaintiff’s recovery is governed by the amount claimed, and for the reason that the judgment is in excess of that amount the judgment must be reversed and cause remanded, when defendant’s appeal from the judgment of the justice may be dismissed, on a proper motion made by plaintiff based on the ground that no motion was made in the justice’s court to set aside the judgment •by default, before the appeal was taken..

All concur.