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4 Mo. 28

Jones v. Davis

Supreme Court of Missouri

Decided May 15, 1835

Supreme Court of Missouri · decided 1835-05-15

<p>1. Onmotion in the circuit court to dismiss an appeal from a J. P. it appeared an appeal was prayed — an affidavit made and certified — an appeal bond signed and filed, but not tested by the justice — Reid, sufficient evidence of an appeal — and that it was the duty of the J. to have certified the appeal bond: and the circuit courtjiidflight in permitting a new one to be filed.</p> <p>On otion in the circuitcout to dis-misa an appeal from a J. P. it ap-made certified — an ap-bond signed “sted^by íh^jus^ Held, suffi. cient evidence of and an appeal — and that it was the duty of the J. to have certified the appeal bond; and the circuit C. did right in permitting a new one to he filed»</p>

Cited by 2 later decisions — most recently March 1912

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1835-05-15

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¶1Opinion of the court delivered by

Tompkins.

¶2Jones sued Davis before a justice of the peace, and there had judgment. To reverse that judgment, Davis appealed to the circuit court, where he had judgment. To'reverse the judgment of the circuit court Jones prosecutes his writ of error.

¶3In the circuit court Jones moved to dismiss Davis’s appeal from the justice, because as is alleged there was no appeal taken, and, because there was no appeal bond filed. The circuit court overruled the motion and allowed the defendant Davis to file a new appeal bond.

¶4It is assigned for error—

¶51st. That the circuit court refused to dismiss the appeal.

¶6~n<^- That the court permitted Davis to give a new recognizance of appeal. Looking into the transcript of the proceedings before the justice, we find this entry: “The said Davis failing in his application for a new' trial in the cause prays an appeal to the circuit court,” &c. *29Ail affidavit is filed and tested by the Justice. An appeal bond is also filed but not tested by the justice. This bond is made to Levi Jones. It is the opinion of the court that there appears on the transcript sufficient evidence of an appeal. After affidavit and recognizance bail filed, the justice had no discretion to exercise. It became his duty to grant an appeal and to test the nizance, and this he must evidently have intended to do: otharwise he would not have entered the prayer of peal or have tested the affidavit. The circuit court in this state of the case, we think, did right to allow the fendant to file a new appeal bond. The judgment of the circuit court is therefore affirmed.

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