Garesche v. Hill

Missouri Court of Appeals

Garesche v. Hill

76 Mo. App. 659, 1898 Mo. App. LEXIS 256

DecidedNovember 15, 1898

StatusPublished

This text of 76 Mo. App. 659 (Garesche v. Hill) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garesche v. Hill, 76 Mo. App. 659, 1898 Mo. App. LEXIS 256 (Mo. Ct. App. 1898).

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Opinion

Bland, P. J.

Erom a judgment of a justice of the peace the defendant appealed to the circuit court, city of St. Louis; he failed to pay the filing fee, as required by the statute relating to the St. Louis circuit court. 2 R. S. 1889, p. 2148, sec. 17; thereupon the plaintiff paid the filing fee, caused the case to be docketed, and moved for an affirmance of the judgment for failure of the defendant to prosecute his appeal; this motion was sustained, and the judgment of the justice was affirmed; defendant filed a motion to set aside the judgment of affirmance and to reinstate the cause, offering to pay the filing fee. In support of his motion he filed the affidavit of himself and his attorney; counter affidavits were filed by the plaintiff and the justice who rendered [661]*661the judgment; the court overruled the motion; from this order the defendant appealed.

The ground on which the appeal is prosecuted is that the circuit court abused its discretion, in refusing to set aside the judgment of affirmance. The facts stated in the affidavit of appellant and his attorney in support of the motion to set aside the judgment, furnish no valid excuse for nonpayment of the filing fee — in fact they make a clear case of negligence in that regard on the part of the appellant. On the authority of Dalton v. McCaffery, 20 Mo. App. 61, and of the cases therein cited, the judgment is affirmed.

All concur.

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Bland, P. J.

Erom a judgment of a justice of the peace the defendant appealed to the circuit court, city of St. Louis; he failed to pay the filing fee, as required by the statute relating to the St. Louis circuit court. 2 R. S. 1889, p. 2148, sec. 17; thereupon the plaintiff paid the filing fee, caused the case to be docketed, and moved for an affirmance of the judgment for failure of the defendant to prosecute his appeal; this motion was sustained, and the judgment of the justice was affirmed; defendant filed a motion to set aside the judgment of affirmance and to reinstate the cause, offering to pay the filing fee. In support of his motion he filed the affidavit of himself and his attorney; counter affidavits were filed by the plaintiff and the justice who rendered [661]*661the judgment; the court overruled the motion; from this order the defendant appealed.

The ground on which the appeal is prosecuted is that the circuit court abused its discretion, in refusing to set aside the judgment of affirmance. The facts stated in the affidavit of appellant and his attorney in support of the motion to set aside the judgment, furnish no valid excuse for nonpayment of the filing fee — in fact they make a clear case of negligence in that regard on the part of the appellant. On the authority of Dalton v. McCaffery, 20 Mo. App. 61, and of the cases therein cited, the judgment is affirmed.

All concur.

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76 Mo. App. 659, 1898 Mo. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garesche-v-hill-moctapp-1898.

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