
    Lemon Hosea & Co., Appellants, vs. Charles W. Cross, et al., Respondents.
    I. Note lost after appeal from justice — Affidavit not required — Constr. Stat.— Where a note, sued upon before a justice of the peace is lost after appeal taken to the Circuit Court, the affidavit of loss, contemplated by the statute (2 Wagn. Stat., p. 81, \ 10), is not required.
    
      Appeal from Caldwell Circuit Court.
    
    
      Murat Masterson, for Appellants, relied on German Sav.Bk. vs. Kerlin and Joseph Marks (53 Mo., 382).
    
      J. M. Hoslcinson, for Respondent.
   Sherwood, Judge,

delivered the opinion of the court. '

During the pendency of this cause in the Circuit Court, the promissory note, sued on before the justice of the peace, was lost, and because of the refusal of the plaintiffs to file an affidavit of such loss, in the manner required by § 10, p. 814, Wagn. Stat., the court dismissed their suit.

An affidavit, alleging loss of the instrument sued on, is one of the requirements of the section referred to, where suit is instituted before a justice of the peace; but it by no means follows that an affidavit is necessary, if the loss occurs after the case goes by appeal to the Circuit- Court. (German Savings Bank vs. Kerlin, 53 Mo., 382.)

Reversed and remanded;

all the judges concur.  