Ellis v. Kyes , 1891 Mo. App. LEXIS 438 ( 1891 )

Smith, P. J.

This was an action commenced before a justice of the peace, where the defendant had judgment. The plaintiff filed an affidavit and bond for an appeal. At the first regular term of the circuit court thereafter, viz., the April term, 1890, said cause was continued by the court to the next regular term “for want of notice of appeal;” the order being made, as shown by the record, on the twelfth day of April. On the fourteenth day of April, 1890, two days after said continuance, the sheriff served upon O. B. Crawley a paper purporting to be a notice of appeal, directed to “F. B. Kyes and Crawley & Son, his attorneys of record.” On the first day of the next succeeding term of said court, to-wit, the October term, 1890, said F. B. Kyes filed his motion, supported by affidavit, asking an affirmance of the judgment of the justice, for failure of said Ellis to give notice of said appeal according to law.

It appears from the evidence heard on the motion that Mr. Crawley was not the attorney who represented the defendant before the justice of the peace, but that other attorneys appeared for Mm there. It was, however, shown in the circuit court that he was the only attorney appearing there for defendant. The service of the notice of the appeal was made on him after the present statute became operative. It provides in section 6342, that notice of appeal may be served in like manner as an original writ of summons, or by delivering a copy of the same to the appellee by any person competent to be sworn as a witness, or, if the appellee shall ham appeared to the suit before the justice of the peace, either by agent or attorney, said notice may be served on said agent or attorney; and when the appellee does not reside in the county, and has no known agent or attorney in the suit thereto,' the service may be by leaving a copy of such notice with the justice.” Under the provisions of the statute of 1879 (sec. 3055), service of the notice of appeal on an attorney in • the case was insufficient. Jordan v. Bowman, 28 Mo. App. 608; Finley v. McClure, 25 Mo. App. 418. But in 40 Mo. App. 227, and 43 Mo. App. 214, it was decided that service can be had on the attorney, if the appellee does not live in the county.

It is now contended that, under the last-named section, the service of such notice on the attorney of the appellee is sufficient. It will be seen from the words that have been interpolated into it by the amendment ■of 1889, which we have italicized,'that the statutory rule as it was understood and interpreted, has not been wholly abolished, but only qualified to the extent the qualifying words plainly imply. A service of the notice' of an appeal on the attorney of appellee is no more a valid service now than it was under the statute before it was amended, except in those cases where the appellant has ■appeared to the suit before the justice either by agent ■or attorney, the notice ma,y be served on the said agent ■or attorney. This is a solitary exception introduced in the amendment to the rule prescribed by the statute of 1879. The service of the notice in that case is limited to the agent or attorney who appeared to the suit before •the justice. A service on any other attorney will not do.

When a defeated party before the justice of the peace do.es not take an appeal on the day of the trial, but concludes to do so at a later day, he must give the other party personal notice of that important step in all •cases, except when a different kind of notice is expressly authorized by statute. It must, therefore, follow that the service of the notice of appeal on Mr. Crawley was ■unauthorized by thes tatute. The circuit court could acquire no jurisdiction of the appeal, until the appellant served notice thereof either on the appellee or his agent or attorney who appeared in the suit before the justice. Until such notice, he was not required to pay any attention to the appeal, but, if he chose voluntarily and unconditionally to appear in the court by an attorney without being first required thereto by proper notice, he must be deemed to have waived the service-of that notice. But the record in this case informs us that the appellee limited his appearance, and that he did not unconditionally submit himself to the appellate jurisdiction of the court. The court could acquire jurisdiction in two ways only, either by the proper service of notice of the appeal on the appellee, or his agent or attorney, who appeared in the suit before the justice, or by such an appearance of the appellee in the court as would amount to a waiver of the notice. One of these steps was a condition precedent to the acquisition of jurisdiction. There was an absence of both, and, therefore, no jurisdiction.

The circuit court should have affirmed the judgment- It .follows that the judgment of the circuit court must be reversed, and cause remanded, with directions to affirm the judgment of the justice.

All concur.