
    Michael A. Hammel et al., Respondents, v. John Weis, Appellant.
    St. Louis Court of Appeals,
    April 25, 1893.
    1. Justices’ Courts: notice of -appeal: presumptions. The transcript of a justice of the peace recited, the rendition of judgment for the plaintiff, also that the defendant had, on the same day, filed the affidavit and signed the bond for an appeal, and that the justice had on the next day approved the bond and allowed the appeal. The approval of the bond bore the latter date. Held, that it must be presumed that the bond was not executed by the surety thereto until the date of its approval, and accordingly that statutory notice of the appeal was requisite.
    2. -: --. When notice of an appeal from a justice of the peace is required under the statute in relation thereto and is not given, it is the imperative duty of the circuit court at the second term after the appeal is taken to either affirm the judgment or dismiss the appeal, as the plaintiff may elect.
    
      Appeal from the St. Louis City Circuit Court. — Hon. W. W. Edwards, Special Judge.
    Affirmed.
    J. C. Terry, for appellant.
    
      J. L. Hornsby, for respondents.
   Biggs, J.

— The statute (Revised Statutes, 1889, sec. 6342) regulating appeals from judgments rendered by justices of the peace, provides in substance that, if an appeal is not allowed on the same day on which the judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an appeal has been taken. Section 6344 of the statute reads: “If the appellant shall fail to give such notice at least ten •days before tbe second term of tbe appellate court after tbe appeal is taken, tbe judgment shall be affirmed or tbe appeal dismissed, at tbe option of tbe appellee.”

In the case at bar tbe plaintiffs obtained a judgment against tbe defendant before a justice of tbe peace. An appeal was taken wbicb was returnable to tbe June term of tbe circuit-court. At tbe October term of said court, on motion of tbe plaintiffs, tbe judgment was affirmed for failure to give notice of tbe appeal. Tbe -defendant appeared during tbe term, and moved the court to set aside tbe judgment of affirmance for tbe reason that tbe appeal was taken on tbe day of tbe trial. Tbe court overruled tbe motion, and tbe defendant has appealed.

Tbe judgment before tbe justice was rendered on tbe second day of May, 1892. That portion of the - transcript of tbe justice, wbicb is material, reads: ‘ ‘May 2, 1892, tbe defendant, John Weis, makes and files affidavit praying for an appeal, also signed bond for appeal. May 3. Bond approved, and appeal alloioed to tbe circuit court of tbe city of St. Louis, Missouri.” Tbe appeal bond shows that it was attested and approved on tbe third day of May, 1892.

If tbe transcript-showed affirmatively that tbe bond was signed by tbe surety on May second (tbe day of trial), then we might well consider tbe argument that, as tbe defendant bad done everything tbe law required of him in order to perfect bis appeal, be could not be prejudiced by tbe delay of tbe justice in approving tbe bond and noting tbe allowance of tbe appeal on bis docket. Tbe record, however, only recites that tbe ■defendant signed tbe bond on May second. When it was signed by the surety does not appear. As tbe statute provides that no appeal shall be allowed by a justice, unless tbe appellant .or some one for him with one or .more solvent sureties shall enter into a recognizance to be approved by the justice, the presumption arises in the present case that the defendant’s appeal bond was not completed until May third, the day on which it was approved and the appeal allowed. Such presumption rests on the theory of right action, which supports the official acts of all public officers when there is no evidence of actual dereliction of official duty.

The conclusion necessarily follows that the appeal was not taken on the day of trial but on the succeeding day; hence notice of the appeal was required, and, as it was not given, it was the imperative duty of the circuit court at the second term after the appeal was taken to either affirm the judgment or dismiss the appeal, as the plaintiffs might elect. Rowley v. Hinds, 50 Mo. 403; Purcell v. Railroad, 50 Mo. 504; Page v. Railroad, 61 Mo. 78; Town of Brownsville v. Rembert, 63 Mo. 393; Town of Carrollton v. Rhomberg, 78 Mo. 547; Dooley v. Railroad, 83 Mo. 103; Cooksey v. Railroad, 17 Mo. App. 132; Holdridge v. Marsh, 28 Mo. App. 283; Earl v. Hart, 89 Mo. 263.

By the affirmance of such a judgment is not meant, as counsel argues, a vitalizing of the judgment before the justice, for the effect of the appeal was to absolutely vacate such judgment. The judgment of the circuit court is new and independent, and is one of recovery against the appellant and surety on the appeal bond. It is analogous to a judgment by default. The appellant having entered his appearance by taking his appeal and having. failed to give notice of the appeal, the appellee is entitled upon the record itself without the introduction of any evidence to a judgment.

"With the concurrence of the other judges the judgment will be affirmed.

All the judges concur.  