Graves v. Missouri Pacific Railway Co. , 18 Mo. App. 647 ( 1885 )

Opinion by

Philips, P. J.

The plaintiff sued defendant in a justice’s court for damages done to plaintiff’s horse. The defendant was duly summoned, but .made default and the plaintiff recovered judgment for $100. The record fails to show that defendant made any application in the justice’s court to set aside this judgment by default; but within ten days took an appeal to the circuit court, where, on a trial de nono, plaintiff again recovered judgment; and defendant has brought the case here by appeal.

The motion to set aside the default in the justice’s court, and its denial, were indispensable to entitle the defendant to an appeal.

Without such preliminary action the appeal is unauthorized, and neither the circuit court nor this court acquired any jurisdiction over the case. Barnett et al. v. Lynch, 3 Mo. 261; Garnet v. Rogers, 52 Mo. 145; Kinsar v. Shands, 52 Mo. 326; Smith v. R. R. Co., 53 Mo. 338; Laughlin v. January, 59 Mo. 383; Roach v. Montserratt Coal Co., 71 Mo. 398.

Nor did the allowance of the appeal, by the justice raise any presumption that an application to set aside, the default had been previously made. Burns v. Hunton, 24 Mo. 337.

The result, therefore, is that the judgment of the justice’s court remains in force; and the .appeal herein must be dismissed.

All concur.