Boulware v. Chicago & Alton Railroad

Sherwood, J.

Action brought before a justice of the peace for killing a cow at a public road crossing. Defendant made no appearance on the day the cause was set for trial, and judgment by default was entered. Afterward the defendant appeared and moved to set aside the judgment by default and for a new trial, which motion being overruled appeal was taken to the circuit court- where defendant hied a special motion to dismiss, based on the grounds of the insufficiency of the summons and of the service of the summons, and because there was no service of the summons. This motion was overruled and thereupon the plaintiff was permitted to amend the summons by inserting the words, “ against the aforesaid Chicago & Alton Railroad Company for damage for the killing of a cow belonging to plaintiff, by defendant.” Defendant made no further appearance and the judgment was affirmed.

i. justice’s couet: amendmeut^'appea1’ If there was any necessity to amend either the summons or the return thereon, the powers of the circuit court were ample for that purpose. The circuit court had the same power in this regard that the justice had. Transier v. Railroad Co., 54 Mo. 189 ; R. S. 1879, § 2937.

2_._. waiv. appeal:dbycappeaí anoe When the cause comes up to the circuit court on appeal it is to be tried de novo, without regard to any “ error, defect or other imperfection in the original summons or the service thereof.” R. S., § 3052. A long while ago, before the section cited contained as many or as full provisions as it does now, in the ease of Ser v. Bobst, 8 Mo. 506 , it was expressly held that the justice of the peace had not acquired jurisdiction of the person of the defendant, because of the defective service of process, yet that notwithstanding this the circuit court should proceed to determine the cause anew as if it had originated in that court, “ without regarding any error, defect,” etc., and that the defendant, by bringing up the *496 cause had dispensed with the necessity of a regular summons before the justice.

But in this case it may be conceded that the summons- and the service were both defective; still defendant appeared before the justice and filed a motion to set aside the judgment by default and for a new trial. What the grounds of that motion were, we are not apprised. When one who has been defectively served with process or served with defective process, appears generally, as we must assume was done in this cause before the justice, all defects of the nature alluded to are either cured or waived. Griffin v. Van Meter, 53 Mo. 430 , and eases cited.

The judgment is, therefore, affirmed.

All concur.