Conrey v. Davis

256 S.W. 319, 216 Mo. App. 341, 1924 Mo. App. LEXIS 122

• Court: Missouri Court of Appeals
• Decided: December 7, 1924
• Status: Published

Opinion

FARRINGTON, J.

This case in the trial court rode off on a technicality and must receive the same fate here. It is the disposition of this court to decide cases, as far as possible, on the merits of the controversy as they come up between the parties to the litigation, and not to permit the rights of litigants to be forestalled or disposed of on the rules of practice. Unfortunately in this case we can know nothing; of the merits of this suit which was originally brought, and the opinion disposing of the case here can in no wise advise the losing' party why he was not entitled to damages by reason of a delayed shipment alleged to have been made by the defendant.

As the case stands here, the plaintiff sued the defendant in a justice of the peace court for a delayed shipment of cattle. The judgment went for plaintiff in the justice court and an appeal was taken by the defendant. The case as it was filed in the justice court was entitled, “J. E. Conrey, Plaintiff, v. James C. Davis, Federal Agent.” The affidavit and bond for appeal were captioned just as the suit was filed in the justice court and the bond made by the appealing defendant was signed, “James C. Davis, Agent.” In giving the statutory notice to the plaintiff of the appeal the notice was captioned, “J. E. Conrey, Plaintiff v. James C. Davis, Federal Agent. ’ ’ The notice was in writing and informed the plaintiff that the defendant had taken an appeal from a judgment rendered against him by E. A. O’Dwyer, Justice of the Peace for Monett Township, Barry County, Missouri, on the 9th day of October, 1922, giving the amount of the judgment and the pendency of the suit in the circuit court. This notice was signed as follows: “St. Louis-San Francisco Railway Co., by Mann & Mann, its attorneys,” and is followed by, “Service of a copy of this notice acknowledged this 21st day of December, 1922,” signed, “Sizer & Gardner, attorney for plaintiff.”

"When the case was reached in the circuit court the attorneys for plaintiff filed a motion in which they sought to have the circuit court affirm the judgment rendered in the justice court, the ground .being that the defendant had “failed to give plaintiff any sufficient or legal notice of said appeal as required by law,” which motion was signed by Sizet & Gardner, attorneys for plaintiff. The trial court refused to affirm the judgment and the plaintiff refused to further appear or prosecute the action, whereupon the court dismissed the cause and entered judgment for the defendant.

The record here fails to show, either in the record proper or in the bill of exceptions, that any steps were taken in the nature of a motion for a new trial, motion for rehearing, or motion in arrest of judgment, to which the attention of the trial court was called to the alleged error. We, therefore, find the appellant standing in this court solely on the question of the insufficiency of the notice of the appeal from the justice court to the circuit court; and the respondent here standing, first, on the ground that; the notice, under the recent decisions, of the Supreme Court, and other Courts of Appeals, is sufficient; and further on the ground that there is nothing here for this court to review because no motion for a new trial, or rehearing, or motion in arrest was filed in the circuit court. As stated before, in making the decision on these two questions we find ourselves entirely at a loss to decide the question, whether plaintiff’s cattle were damaged ■ or not, which was the substance of the law suit and the one that the litigants had a right to expect to be' tried and determined by the courts.

The judgment of the trial court as it comes to us must be affirmed for two reasons: First, the appellant failed to preserve any ¿notion for new trial or in arrest of judgment in tKe bill of exception in tbe trial court. Tbis bas been beld as a necessary step in order to bave tbe action on sucb motion reviewed in tbe appellate court. [See Schuchart v. Brasler, 249 S. W. 164; Coffey v. Carthage, 200 Mo. l. c. 629, 98 S. W. 562; Leahy v. Mercantile Trust Co., 247 S. W. l. c. 401; Equitable Life Assurance Co. v. National Bank, 197 S. W. 115.]

A number of decisions of appellate courts in this State, including tbis court, bave given very strict construction to section 290'5, Revised Statutes 1919, calling for the giving of notice of appeal by appellant in tbe justice court. Tbe trend of the later opinions, however, is to construe tbis statute in a more liberal way, and as we understand tbe rule as approved by the more recent opinions of tbe Supreme Court, it is that if the written notice is sucb that it in fact reasonably describes tbe cause of action, tbe judgment, tbe parties and tbe information that an appeal bas been taken, it is sufficient to satisfy the statute. In tbe instant case tbe caption correctly describes tbe plaintiff and tbe defendant; it was addressed to tbe attorneys for tbe plaintiff who, in writing, acknowledged tbe notice; it told tbe amount of tbe judgment, tbe justice before whom it was rendered, and that an appeal bad been taken. It was also common knowledge that tbe St. Louis-San Francisco Railway Company was not operating its road at tbe time plaintiff’s cattle were killed and that James C. Davis, at tbe time tbe suit was brought, was tbe Federal Agent of tbis road.

As we understand tbe last decision of tbe Supreme Court concerning tbe sufficiency of tbe notice, it is that while a written notice is required yet it is sufficient if it informs tbe appellee of enough of tbe facts concerning tbe appeal, from which any reasonable person would conclude that be bad knowledge, that tbe appeal bad been taken. [See Davenport Vinegar & Pickle Wks. v. Shelly, 217 S. W. 267. See same case, dissenting opinion, 196 S. W. 1037; Wolf v. Marples, 231 S. W. 1019; Raney v. Church, 231 S. W. 1017.]

In the case of Hoffman Bros. Piano Co. v. Morris, 190 Mo. App. 383, 177 S. W. 320, which was upheld by the Supreme Court in 204 S. W. 1082, we followed the line of cases holding to a strict construction of this statute and the Supreme Court affirmed that judgment, it being certified to that court by one of the judges. Since that time, however, in Davenport Vinegar & Pickle Wks. v. Shelly, 217 S. W. 267, the Supreme Court held that the statute was entitled to a liberal construction with reference to sufficiency of the notice and mentioned that a number of opinions had been rendered, without naming them, which had held to too strict a rule. We, therefore, disapprove the ruling in Hoffman Bros. Piano Co. v. Morris, 190 Mo. App. 383, 177 S. W. 320, in so far as it conflicts with the later opinions of the Supreme Court and with this opinion.

We hold, therefore, that the trial court ruled properly in refusing to affirm the judgment of the justice court because bf an insufficient notice of appeal; and second, because the appellant here failed to file a motion for new trial, or in arrest, complaining of the action of the trial court in that particular. The judgment is affirmed.

Cox, P. J., and Bradley, J., concur.