Fisher v. Pacific Railroad

46 Mo. 304

Opinion

Wagner, Judge,

delivered the opinion of the court.

The District Court dismissed the appeal in this case, leaving the judgment of the Circuit Court in full force, because the record was defective. The action was originally instituted before a justice of the peace, where the plaintiff had judgment, and on an appeal to the Circuit Court judgment was again rendered in his favor.

The only point now urged for a reversal is that the record shows no cause of action. The account or complaint which should have been filed with the justice does not appear in the transcript. The transcript from the justice’s court states that the plaintiff filed an account and petition for $95 as the foundation of his action; the defendant appeared, went to trial before a jury, and appealed from the verdict and judgment to the Circuit Court, where a new trial was had, and the judgment of the Circuit Court expressly states that the court found that the plaintiff had sustained damages as alleged in his complaint. No motion to dismiss, or in arrest of judgment, Was made in either of the inferior courts, because the complaint or account was not filed before the magistrate,- and the objection is now-raised here for the first time. There was a motion for a new trial in the Circuit Court, but the point now rolied on was not mentioned as one of the reasons for that motion. The presumption is ,in favor of the regularity of the proceeding below, and the objection comes too late. It can not be raised here for the first time.

The District Court should have affirmed the judgment instead of dismissing the appeal, but as its action leads to the same result, the judgment will be affirmed.

Judge Currier concurs ; Judge Bliss absent.