Hawley v. Missouri Pacific Railway Co.

80 Mo. 540

Opinion

Norton, J.

This suit was brought before a justice o_ the peace, and judgment by default was rendered for plaintiff, and, after the refusal of the justice to set the same aside on motion of defendant made within ten days after the rendition of judgment, defendant appealed to the circuit court of Buchanan county. This appeal was returnable to the September term, 1880, of said court, which began on the first Monday of that month. As the appeal was not taken on the day the judgment was rendered, and as the record does not show that the defendant either gave notice of appeal, or that plaintiff entered his appearance on or before the second day of the term, tbe circuit court erred in proceeding at said term to bear tbe case and render judgment, and in refusing to sustain tbe motion of defendant for new trial based on that ground. Nay v. H. & St. J. R. R. Co., 51 Mo. 575; Blake v. Downey, 51 Mo. 437; Transier v. Railroad Co., 54 Mo. 189, and Blakely v. Mo. Pac. R’y Co., 79 Mo. 342.

Judgment reversed and cause remanded for the error above indicated.

All concur.