
    PATTEN vs. NELSON.
    
      l. Appeals from justices of the peace, in the county of St. Louis, should be taken to that eourt whose sittings commence first after the appeal, having jurisdiction to try the case at that term.
    APPEAL ER.OM ST. LOUIS CIRCUIT COURT:
    Leslie & Lord, for appellant.
    The only question presented by this case; is : Did the circuit court err in dismissing the appeal ?
    The third sub. of the first section of of the act of 1841,, establishing the court of common pleas for St. Louis county, gave to that court exclusive appellate jurisdiction from judgments rendered by justices of the peace. See Laws 1841, p, 50.
    The second section of the act of 1843, amendatory of the abovementioned act, gave to the court of common pleas, and to the circuit court, concurrent appellate jurisdiction from judgments of justices, and directed that the justice fiom whose judgment an appeal should be taken, should, on or before the first day of the circuit court, or court of common pleas, as the one or the other court might be held next after the appeal should have been allowed, file in the office of the clerk of said cour.t, the. transcript, &c., and that such cour:t should proceed thereon, &c. Laws 1843, page 56.
    The General Assembly, in 1.S45, passed an net entitled <l An act to establish a court of common pleas in the county of St. Louis, ” by the first section of which it is enacted, that a court of record, to be il called the S. Louis court of common pleas, is henby established, ” §c. &c. R. S. p. 314. And by the second section of the same act, concurrent appellate jurisdiction is given to the circuit court and to the court of common pleas from the judgment of justices, but does not p rovide, as in (he act of 1843, that the appeal shall be taken to the court which gits first after the appeal shall be perfected. R. S. page 315.
    Dy the act of 18-45, concerning justices courts, it is provided that all, appe.”-i" \ - T |,.n days before the first day of the term of the circuit court next after the appeal allowed, shall be determined at such term, &c. R. S. 670, sec. 20.
    Sec, 20, of an act concerning the revised statutes, provides that all acts of a public, general and permanent nature, revised- at the present session, #c. So soon as such acts shall take effect, shall be construed as repealing the acts in force at the commencement of the present session-. Sec. 20 A. S. page 699.
    Sec. 22d of the last mentioned act, provides : that all acts specially applicable to the city or county of St. Louis, in force at the commencement of the present session, &c., and not repealed or modified by some-act of the present session, specially applicable to said county or-city, shall be. continued in force. Sec. 22 R. S., page 699.
    These, it is believed, are all the acts of the assembly hearing upon the question, and we think under the law as it stands, that the circuit court erred in dismissing the appeal, because
    1st, A party asking redress either by t-he commencement of an action, or by appeal from an inferior court, when there are two courts having concurrent jurisdiction, may elect the forum where he will commence his suit, or try his appeal.
    2d- The appeal was properly brought, and the transcript and papers properly filed by the justice with (he clerk of the circuit court.
    The appeal was taken on the third day of February, and the common pleas commenced its-session qn the 7tij on the same month, so that only four days elapsed between the time of taking the appeal and the commencement of a session of the common pleas, and as the appeal was not taken ten days before such session of the common pleas, a trial could not have been had until the ensuing September term ;■ hut the appeal was taken in time for a trial at the April term of the circuit court, (the term at which the case was dismissed,), so that in, fact the case could have heen sooner fried in the circuit court than in the common pleas.
    The act of 1843, was in fact repealed by the act of 1845; from the moment the act of 1845 took effect, every act concerning the St. Louis court of common pleas, prior in date to that, was repealed, and this by every rule of construction known. A ne-w court was erected ; the old court of common pleas was dead. Nor does section 22d of the a.ct concerning the revised statutes, page 699, help the defendant in error out, for that section only preserved such acts as were not repealed or modified by some act of that session, and we think that the acts of 1841 and 1843 were repealed by necessary construction of the act of 1845-, and if not repealed, then we say that the 2d section of the act of 1843, conferring jurisdiction, was modified by the 2d section of the act of 1845, and consequently of n,o force.
    Grax? for appellee,, insists :
    That the court below committed nQ error in dismissing the appeal; for by the act of 1843 the appeal from a justice of the peace in St. Louis county, is to be taken to the circuit court or court of common pieas, whichever shall' first-sit after the taking of the appeal. See act of February 17 1843, sec.. 2. acts p. 56.
    This being part of an. act specially applicable to St. Louis; and not repealed or modified by any act in the co.de of 1.845, is still in force. Revised Laws 1845, p. 699.
    If Ihe foregoing view be incorrec t; still by the provisions of the laws of 1845—title justices’ courts, act 8-sec. 12, the justice is required), on or before the first day of the court next after an appea.1, to fije bis. tr.ajiscript with the clerk of such court, and the court is then possessed of the cause. Revised Laws 1845, p. 669.
    The court next after ike appeal in this case, was the court of common pleas.
    Thai court consequently had the exclusive jurisdiction of this particular appeal, and the-same was properly dismissed from the circuit court.
   Napton, judge,

delivered the opinion of the court.

This action was originally brought before a justice of the peace, and was determined before the justice on the 3d February, 1848.

An appeal was taken, and the transcript filed in the St. Louis circuit court, which court commenced its sittings on the 17th April, 1848. The common pleas sat on the 7th February 1848. The appeal was dismissed from the circuit court, on the ground that it should have been taken to the common pleas.

The circuit court and common pleas in St. Louis, have concurrent jurisdiction in cases of appeals from justices’ courts. All appeals allowed ten days before the first day of the term of the appellate court next after the appeal allowed, are decided at such term, unless continued for cause. This is a general provision regulating appeals from justices courts, applicable as well in St. Louis county as elsewhere. The act of February 17th, 1843, which was confined in its operations to St. Louis county, directed that the justice, from whose judgment an appeal was taken, should, on or before the first day of the circuit court or court of common pleas, as the one or the other might be held next after the appeal allowed, file in the office of the clerk of said court the transcript &c. By the general law regulating justices courts, passed in 1845, the justice is required, on or before the first day of the court next after an appeal, to file his transcript with the clerk of such court.

We do not think it important to inquire whether the act of 1843 was repealed by the subsequent enactments in the revised code of 1845, as we should put the same construction upon either law. The object of the provisions referred to in the act of 1843, and the one contained in the revision of 1845, is obviously to expedite the settlement of these appeal cases, at as early a period as would not be inconsistent with a reasonable time for preparing the papers and the testimony for trial. The appeal is not to be tried within ten days from the time it is taken in any, case ; but after the lapse of that time, which was doubtless thought sufficient for the purpose above suggested, it is to be tried at the first term of the court to which it is taken, and in St. Louis, it is to be laken to that court where a trial may be first had. This is the spirit of the law of 1843, and the appellant evidently complied with its spirit and intention, by taking his appeal to the circuit court, although the common pleas held a session before that of the circuit court, and after the appeal was granted. As the session of the common pleas commenced within the ten days after the appeal, the case, if taken to that court, could not have been tried until the second term, whereas, by taking it to the circuit court, it was triable at the first term, and this term commenced months before the second term of the common pleas. The law is, as we ■ understand it, that the appeal shall be taken to that court whose sittings commenced first after the appeal, having jurisdiction to try the case at that term.

The other judges concurring, the judgment is reversed and the cause remanded.  