
    C. L. Williams, Respondent, v. G. W. Lewis, Appellant.
    St. Louis Court of Appeals,
    February 2, 1892.
    1. Justices’ Courts: dismissal of appeal. When a defendant appeals from a judgment rendered against him by a justice-of the peace, he cannot avoid a judgment against himself and his sureties in the appellate court by dismissing his appeal in that court without the consent of the plaintiff,
    
      2. -: effect OF an appeal. Held, arguendo, that an appeal from the judgment of a justice of the peace vacates such judgment, except where, pursuant to the express provision of the statute, the appeal is dismissed at the instance of the appellee for the failure of the appellant to give the requisite notice of it.
    
      Appeal from the Howell Circuit Court. — IIow. W. H. Evans, Judge.
    Aeelrmed.
    
      Olden & Orr, for appellant.
    No brief filed for respondent.
   Biggs, J.

This is an appeal from an order of the circuit court overruling a motion to quash an execution. The cause originated before a justice of the peace, where the plaintiff recovered a judgment. The defendant appealed. When the case reached the circuit court the defendant appeared and voluntarily offered to dismiss his appeal. Thereupon the court entered a judgment of affirmance against the defendant and the sureties on his appeal bond, and the entry of judgment, also, showed a dismissal of the appeal by him. An execution was issued on the judgment, which the defendant asked the court to quash, because the statute did not authorize a judgment of affirmance against him and his sureties after the dismissal of his appeal. This is the only question presented by the record.

The defendant’s contention must necessarily rest on the assumption that, where the defendant appeals from a judgment rendered by a justice of the peace, he may dismiss his appeal without the consent of his adversary, thereby depriving the latter of a summary judgment against him and his sureties. We find nothing in the statute to warrant this, but on the contrary we think it is at war with the policy of the law. To permit such a practice would practically nullify the most salutary provisions of the statute governing appeals from justices of the peace. In such a case, where the defendant is unsuccessful or fails from any cause to prosecute his appeal, the plaintiff is entitled to a judgment against him and the sureties on his appeal bond, whether the judgment be one of affirmance or on a trial ele novo. This is a positive right afforded him by the statute, and he cannot by any act of his adversary be deprived of it and forced to seek redress by an action on the appeal bond.

Our conclusion seems to us to be unavoidable, when recurrence is had to the adjudicated cases of the state which decide that an appeal from a judgment rendered by a justice of the peace vacates the judgment (Munley v. King, 40 Mo. App. 531; Lee v. Kaiser, 80 Mo. 431; Earl v. Hart, 89 Mo. 263), except where the statute expressly authorizes the dismissal of the appeal, which it only does where the appellant has failed to give notice of the appeal as required by law, and then only at the option of the appellee. R. S. 1889, sec, 6344. As a general rule the plaintiff (if he is the appellant) may dismiss his appeal, but such a dismissal would not reinstate the judgment of the justice. It would be held equivalent to a voluntary nonsuit. Therefore, if the defendant should be allowed' to dismiss Ms appeal, it would necessarily confer upon him the right to compel the plaintiff to take a nonsuit, which would certainly be to his advantage, but in most cases would not prove satisfactory to his adversary.

There is nothing to prevent the defendant in such a case from signifying to the court a willingness to dismiss his appeal, but, if the court should make an entry of dismissal, it would only amount to a declaration by the defendant that he was unwilling to prosecute his appeal, and such declaration would authorize a judgment of affirmance under the statute. Holloman v. Railroad 92 Mo. 287.

We are, therefore, of the opinion that the judgment of affirmance was rightly entered, and that the judgment of the circuit court in overruling the defendant’s motion to quash the execution must be sustained.

All the judges concurring,

it is so ordered.  