Williamson v. Missouri Pacific Railway Co.

25 Mo. App. 481, 1887 Mo. App. LEXIS 340

Opinion

I.

Hall, J.

The sufficiency of the constable’s return on the summons could not be inquired into on an ajjpeal •to the circuit court. By our statute (Rev. Stat., sect. 3052) it is provided that “upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons, or the service thereof \ or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause.” Gant v. Railroad, 79 Mo. 502; Boulware v. Railroad, 79 Mo. 494; Fitterling v. Railroad, 79 Mo. 504.

II.

It was error for the court to affirm the judgment of the justice at the return term of the appeal. Under certain circumstances the case would have been for trial at the teim, but the court should not, at that term, have affirmed the judgment. Priest v. Railroad, 85 Mo. 523.

For this error the judgment must be reversed and the cause remanded. It is so ordered.

Ellison, J., con-, curs; Philips, P. J., absent.