Leith v. Shingleton

Ellison, J.

This action originated before a justice of the peace, who rendered a judgment for the plaintiff. This judgment shows upon its face an appearance of defendants and a trial on March 2, 1889. Afterwards, on March 11, one of the defendants, as shown by the following entry, “ appeared and filed affidavit to set aside the judgment in this cause, and, having shown good cause therefor and paid all costs that have accrued up to this time, it is ordered that said judgment be set aside and a new trial granted defendants.” On the day set for the new trial, plaintiff and defendants appeared, went into another trial, upon which defendants recovered a judgment against plaintiff upon a set-off, and plaintiff, in due time, appealed to the circuit court. In the latter court defendants again prevailed, and plaintiff brings the case here. His chief ground of complaint is that, the first judgment not having been by default, the justice had no authority to set it aside and grant a new trial, and that the circuit court had no jurisdiction of the cause.

Since plaintiff appeared to the second trial before the justice and contested the issues anew, our first impression was, he was bound by the proceedings, but the precise point has been twice otherwise decided by the supreme court. Cason v. Tate, 8 Mo. 45; Downing v. Garner, 1 Mo. 751. It seems that, as the justice had no authority to set aside the first judgment, that he had no further jurisdiction of that particular subject-matter, and the appearance of the parties did not, and could not, confer it. It follows that the first judgment rendered for plaintiff by the justice, not having been appealed from, stands in force.

Defendants contend that the full record of the proceedings before the justice shows the first judgment to have, in fact, been by default, and that, therefore, the justice had authority to set it aside as provided by statute. Such, however, is not shown by the record here, which is, of course, our only guide.

The further point is urged that we cannot consider the first judgment rendered by the justice ; it being contended that it is not properly a part of the record, notwithstanding it has been incorporated in the record by the circuit clerk. We rule the point against the defendants. The judgment is found in the justice’s transcript filed in the circuit court. It became a part of the record in the cause, and is properly before us.

The judgment, with .the concurrence of all, is reversed.