Davenport v. City of Hannibal

19 S.W. 822, 110 Mo. 574, 1892 Mo. LEXIS 108

• Court: Supreme Court of Missouri
• Decided: June 20, 1892
• Status: Published

Opinion

Sherwood, O. J.

Division number 2 of this court ''has transferred this cause to court in banc. In that division', the writ of error herein was dismissed because no notice of its having been issued was given, and a motion has been filed to reinstate the cause.

Section 2290, Revised Statutes, 1889, expressly requires that a party “suing out a writ of error shall cause notice thereof, in writing, to be served on the adverse party or his attorney of record twenty days, etc. * * * If such notice be not served, the writ-shall be dismissed, unless good cause for such .failure be shown.77

No cause for such, failure has been shown, and the fact that the adverse party has appealed in the same cause in regard to” the validity of the bill of exceptions cannot supply the lack of notice in writing of the issuance of the writ of error.

Erequent instances are shown in the decisions of this court where like writs have been dismissed for failure to give the notice required. We deny the motion to reinstate the cause.

All concur, except Babolay, J., absent, and Maceablane, J., who dissents on the ground that he thinks a waiver of notice occurred.