
    McCormick v. Bishop.
    Wlten an appeal from a justice of the peace was taken subseqnenfe to the day of judgment, notice of such appeal should be served upon appellee at least ten days before the trial term in the district, court, unless appellee waives. notice by appearance.
    
      Error to Lee District Court.
    
   Opinion by

Greene, J.

Bishop and Wiswell sued John McCormick before a justice of the peace in an action oí' assumpsit.- Judgment was rendered against the plaintiffs and they took an appeal to the district court. At the first term the case was continued, and when it came up for trial at the next term, it appeared that the appellee had not been’ served with notice of the appeal, and had made no appearance in the district court, btrfc the appelant insisted on going to trial, and thereupon recovered judgment against the defendant- The- question- is now presented, did the court below err in rendering judgment against the defendant without notice or appearance ?

The statute provides that if the appeal is not allowed on the day “judgment is rendered, the appellant shall give theappellee at least ten days notice in writing, before the sitting of the court at which the cause is to be determined; ” that the notice may be served'.in like manner as an original summons, and that if notice is not given as required, the cause shall, on application of the appellee, be continued, but that no appeal shall be dismissed for want of such notice. IieV. Stat, 335. § 13-14.

This’ statute clearly requires notice or contemplates the appearance of the appellee in all cases where the appeal is allowed after the elate of judgment; and requires the notice’ to’ be’ given at least- ten days before the term, at which the cause is- to be determined.

If the ©ofitinuas’ce had been granted on the application of appellee, that would have shown an appearance, and no-notice would have been necessary to justify a trial of the cause at the next term of court. But there was no such appearance, and hence the notice should have been served fdpon appellee at least ten days before the term of court at 'which judgment was ¡rendered.

J. C. Hall, for plaintiff in error.

C. Mason, for defendant

It is obvious that a continuance of tbe eaxxse on motion of ¡appellants, or by order of the court without motion, cannot ¡■supercede tbe necessity ©f notice. Tbe notice should be served in all such cases, unless tbe appeal is taken on Abe day judgment is rendered, or unless appellee waives notice by appearance.

Time under tbe statute tbe appeal should not be dismissed for want of snob notice; but it is equally true that a valid jugdment cannot be rendered against tbe appllee without .either notice or appeai’ance.

Judgment reversed.  