Opinion
No. 21856.
April 6, 1953.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT.
Carl H. Willbrand, Kansas City, for appellants.
Paul T. White, pro se, Jay L. Oldham, Kansas City, for respondent.
This is an appeal by defendants, Ruth Winfrey and Louella Patterson, from an order of the circuit court sustaining plaintiff's motion to dismiss an appeal from a judgment in favor of plaintiff, Paul T. White, in an unlawful detainer suit.
The judgment was rendered in magistrate court, on April 28, 1952. Defendants filed notice of appeal, affidavit, and bond, on May 1, 1952 and, on said date, an appeal was allowed to the circuit court. The transcript of proceedings in magistrate court, and other proper papers, were filed in circuit court on May 9, 1952.
On May 20, 1952, plaintiff moved to dismiss the appeal because the transcript was filed in circuit court "after the return day of the appeal, as provided by Sections 534.400, 534.460, and 534.510 RSMo 1949 [V.A.M.S.]."
It has been held that the "Forcible entry and unlawful detainer act" is a full and complete code within itself, and that we are not authorized to draw upon other general provisions of the statute to assist in its construction. State ex rel. Kelly v. Trimble, 297 Mo. 104, 118, 247 S.W. 187, 1009.
That code is set out in Chapter 534, RS Mo 1949, V.A.M.S.
Section 534.390 thereof authorizes the appeal taken in this case.
Section 534.400 provides that no appeal shall be granted unless notice thereof, and sufficient recognizances, be filed with the magistrate within 10 days after rendition of judgment. This section is discussed in State ex rel. Floyd v. Nangle, Mo.App., 238 S.W.2d 6, where it is pointed out that Section 2880, RSMo 1939, which fixed dates for perfecting an appeal, was materially amended by Section 534.400 supra.
Section 534.450 provides that the magistrate, immediately after an appeal is perfected, shall make out and certify a transcript of his record and all proceedings in the cause.
Section 534.460 provides that the appellant shall cause to be filed in the office of the circuit clerk such certified transcript, together with the recognizances and other original papers in the cause, on or before the return day of the appeal.
Section 534.470 provides for dismissal of the appeal if appellant fails to file the transcript and other papers on or before the return day of the appeal unless appellant shall show good cause for his default.
The motion to dismiss the appeal was based on defendants' (appellants') alleged failure to file said transcript "on or before the return day of the appeal."
Movant has failed to cite any section of the statute defining or prescribing "the return day of the appeal."
The judgment was rendered on April 28, 1952, and the transcript was filed on May 9 which, plaintiff says, was one day late. However, in State ex rel. Floyd v. Nangle, supra, 238 S.W.2d loc. cit. 8, it was held that Section 534.400 provides that the appeal must be perfected within 10 days after rendition of the judgment. Nothing is said in that section regarding the filing of the transcript. Section 534.460 provides when the transcript shall be filed, to wit: On or before the return day of the appeal. But nowhere do we find, in the unlawful detainer code, a provision defining or prescribing the "return day," or stating what day it shall be.
Sections 2880 and 2881, RSMo 1939, fixing the "return day" for such appeals as this, were repealed, and a new section enacted in lieu thereof. The new Section, 2880 Laws Mo. 1945, page 1094, provided that appeal from judgments in unlawful detainer cases "shall be returnable within six days after the rendition of the judgment." However, that section was repealed in 1949. Neither Section 534.400 nor Section 534.460, supra, nor any other section or provision of the unlawful detainer act defines or fixes "the return day of the appeal".
The judgment in this case was rendered on April 28, 1952. Notice of appeal and recognizances were filed on May 1, upon which date the appeal was granted. The transcript was filed on May 9, within 10 days after the appeal was taken. Plaintiff has failed to show that the transcript was filed out of time, or that defendants have violated any statute respecting the perfecting of the appeal in the magistrate's court, or the filing of the transcript and other papers in the circuit court. The appeal should not have been dismissed.
Defendants also contend that, even if it might be said that the transcript was filed out of time, yet their appeal should not be dismissed because they showed good cause for having failed to file the same sooner.
On this question defendants offered the testimony of the clerk of the magistrate's court, which was to the following effect: That it is the custom and practice in magistrate court that the magistrate prepare and file the transcript in circuit court, in cases appealed from magistrate court; that the magistrate was unable, in this case, because of an overburden of work and a shortage of personnel, to prepare the transcript sooner than it was prepared; and that it was filed as soon as prepared.
In view of the uncertain state of the statutes relating to the time for filing transcripts in this kind of case, and the rather confused state of the law, generally, since establishment of magistrate courts and the many changes made in the law incident thereto, we think the filing of a transcript within 10 days after the appeal was granted was permissible in this case.
The judgment should be reversed and the cause remanded to the circuit court for trial.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the circuit court for trial.
All concur.