provide that, if he fails to do so, appellee may produce such transcript, and the court shall affirm the judgment, except for good cause shown. An appellant failed to file his transcript within the time limited, and the appellee moved to dismiss the appeal as not taken in time. Held, that appellant could not show good cause for his default, so as to justify the court in overruling the motion to dismiss, but, as the appeal had never been perfected by either party, the court was without jurisdiction thereof.

Appeal from circuit court, St. Louis county; J. W. McElhinney, Judge.

Action by George W. Warner against Mary Donahue and others. From a judgment for plaintiff, defendants appealed to the circuit court, and from an order granting a motion to dismiss the appeal they further appeal. Affirmed.

The action is unlawful detainer, com. menced before a justice of the peace of St. Louis county. The cause was tried before the justice on December 3, 1901. The justice took it under advisement, and on the 6th day of December, which was Friday, gave judgment for plaintiff. At 6 or 6:30 o'clock p. m. on the 12th day of December, defendants filed with the justice their affidavit and recognizance for an appeal, and demanded a transcript of the proceedings before the justice. The justice approved the recognizance, and allowed the appeal, and on the succeeding day furnished defendants a certified transcript of the proceedings before him, which, with the affidavit, recognizance, and other papers, the defendants filed in the office of the clerk of the circuit court on the same day. Plaintiff filed the following motion to dismiss the appeal (omitting caption): "Comes now the plaintiff in the above-entitled cause, being now the respondent therein, and moves the court to dismiss the defendants' appeal, for the following reasons: Because said cause, being a cause of action originating and having been tried before the Justice from whom the appeal was taken under the forcible entry and detainer act, and having been tried and judgment rendered therein during the term of this court, as shown by the transcript filed in said cause and by the records of this court, and the appeal taken by the defendants not having been taken and the transcript returned to this court within six days after the date of the judgment appealed from, this court acquired, and now has, no jurisdiction in said cause of action." To sustain the motion, plaintiff read in evidence the following stipulation: "It is admitted that on the 30th day of November, 1901, the September term of the circuit court of St. Louis county, Missouri, adjourned until the 30th day of December, 1901; that during the month of December, 1901, the judge of the circuit court of St. Louis county, Missouri, was engaged in holding the circuit courts of Osage, Gasconade, and Franklin counties, Missouri, and com pleted his work in these counties on the 21st of December, that year; that on the 30th

on

day of December, 1901, the circuit court of St. Louis county was convened, pursuant to adjournment, and from the 30th day of December, 1901, until the adjournment of the September term of said circuit court of St. Louis county to court in course, which was on Saturday, January 11, 1902, the said circuit court of St. Louis county was solely engaged in the trial of criminal cases, and that during said period of time no civil cases Defendants were tried or set for trial." offered the following evidence: First. That the 6th day of December, 1901, was Friday. Second. The evidence of John Don ahue, one of the defendants, who testified, in substance: That he went to the justice's office December 12th, about 6 p. m.-not later than 6:30 p. m.-and demanded a transcript to be filed in the office of the clerk of the circuit court, and the justice said to him that "he couldn't possibly get it for me that evening. It would take him two hours to do it; and he said to me that he would file the papers himself; and I insisted on having the papers, and explained to him that it was necessary for me to have them; and he finally went and got a book, and showed me that he was supposed to file the appeal; and he got his book out, and he said I was right; that we were supposed to file the appeal. So I told him we would like to have it right away; and he said I should not be in a hurry: that we had got six days from this time, which would be six days after the 12th of December." That he went back to the justice's office on the next day, and got the transcript and other papers, and filed them with the clerk of the circuit court. That he told the justice that his counsel advised him that the transcript should be filed with the clerk on the 12th. George L. Edwards, defendants' counsel, testified as follows: "I will state to the court that when this case was tried before the justice of the peace he held his court in a place called Georgetown, two or three miles south of Kirkwood; that at the conclusion of the trial I asked the justice, after he announced that he was going to take the case under advisement, if he would write me when he had decided the case, and he said no, that he would telephone me immediately on his having reached a decision in the case. He asked me for my telephone number, which I gave him; and he never at any time notified me of his decision in the case, either by telephone or by letter. The first I knew that the case had been decided was the information that I got from the counsel for the plaintiff, Mr. Taylor, which was on Monday evening following the date of the judgment, according to my best recollection." D. C. Taylor, counsel for plaintiff, testified that he informed Edwards on Monday following Friday, December 6th, that the justice had rendered judgment in favor of the plaintiff. The court took the matter under advisement, and on March 10, 1902, sustained the

motion to dismiss the appeal. Plaintiff took the necessary steps to preserve his exceptions to the rulings of the court, and appealed from the order dismissing his appeal.

Geo. L. Edwards, for appellants. D. C. Taylor, for respondent.

BLAND, P. J. (after stating the facts). 1. Section 3368, of the forcible entry and detainer act (Rev. St. 1899) allows an appeal to the aggrieved party. Section 3369 of the act provides that no appeal shall be allowed unless applied for and an affidavit and recognizance filed within 10 days after the rendition of the judgment and before the return day of the appeal. Section 3370 of the act provides that the return day of the appeal shall, if the judgment is rendered in vacation of the circuit court, be on the first day of the next term thereof, but, if the judgment is rendered in term time of the circuit court, the return day of the appeal shall be within six days from the rendition of the judgment. Section 3381 of the act requires the appellant to file in the office of the clerk of the circuit court a certified transcript of the record, etc., in the justice's court on or before the return day of the appeal. The next section (3382) provides that, if the appellant fails to file the transcript, etc., on or before the return day of the appeal, the appellee may produce such transcript and papers, and the court shall affirm the judgment, unless the appellant shall show good cause for his default. Because the circuit court of St. Louis county adjourned its September term from November 30 to December 30, 1901, and during the 30 days of adjournment the judge was engaged in holding terms of court in other counties of his circuit, defendants contend there was no term of the St. Louis county circuit court during the month of December, 1901, and that the appeal was not returnable until the next regular term, and hence they had 10 days in which to perfect their appeal.

The Thirteenth judicial circuit is composed of St. Louis, Franklin, Gasconade, and Osage counties. Section 1699, Rev. St. 1899. Section 1731, Rev. St. 1899, requires that a term of the circuit court shall be held in the county of Osage on the first Monday in December, in the county of Gasconade on the second Monday in December, and in the county of Franklin on the third Monday in December. Hence it is apparent that the September term of the St. Louis county circuit court was adjourned from November 30th to December 30th for the purpose of enabling the judge to hold the regular terms of court in the other counties of his circuit as required by law. It is contended that two terms of circuit court cannot coexist in one and the same circuit, and that, when the judge opened court in Osage county on the first Monday in December, the September term of the St. Louis county circuit court was thereby ended. A term of court has been defined to

signify the period from the first day of the term fixed by law until court is adjourned to the next court in course, and the word "vacation" has been held to mean the period between the day on which a term of court is adjourned to the next court in course, or until the day of the beginning of another term, and not the mere interval when, for any reason, the court is not in session, and is adjourned over for more than a day. State v. Derkum (K. C.) 27 Mo. App. 628; Hadley v. Bernero (No. 8,650, decided at the present term of this court, but not yet officially reported) 71 S. W. 451; Bronson v. Schulten. 104 U. S., loc. cit. 415, 26 L. Ed. 997; Brayman v. Whitcomb, 134 Mass. 525. Under these authorities we hold that the month of December was embraced in the September term, 1901, of the St. Louis county circuit court, and the appeal from the justice's court was taken during a term of the circuit court. 2. Appellants insist that the Sunday following the Friday on which the judgment was rendered by the justice should be excluded from the count of the days in determining the return day of the appeal. If Sunday be excluded, then the return day of the appeal was December 13th, and the transcript was filed in time. The fourth subdivision of section 4160, Rev. St. 1899, art. 2, entitled "Construction of Statutes," provides that "the time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday it shall be excluded." In Patchin v. Bonsack, 52 Mo. 431, and Lieberman v. Findley (K. C.) 84 Mo. App. 384, it was ruled that in computing the time limited for perfecting an appeal from a justice's court Sunday is to be included. In the City of St. Joseph ex rel. Saxton Nat. Bank v. Landis (K. C.) 54 Mo. App. 315, it was held that in computing statutory time Sunday is to be included. The statute and these decisions are against defendants' contention, and we hold that they did not perfect their appeal within six days from the rendition of the judgment by the justice.

3. It is further contended that under the provisions of section 3382, supra, defendants showed good cause for their default, and the court should have overruled the motion on the evidence. This section can be invoked only when the appellant fails to file a transcript together with the original affidavit, recognizance, and other original papers. In such case, after the return day of the appeal, the appellee may file such a transcript, etc., and move for judgment on the transcript be has produced and filed. Bernicker v. Miller, 37 Mo. 498. The plaintiff did not do this. nor could he have done so. He moved to dismiss the appeal on the ground that it was taken out of time, and for this reason the court had no jurisdiction over the subjectmatter of the suit. To confer jurisdiction on the circuit court over the subject-matter of the suit, it was essential that the appea!

should have been perfected by filing a transcript, etc., in the office of the circuit clerk on or before the return day of the appeal. Robinson v. Walker, 45 Mo. 117; Holman v. Hogg (St. L.) 83 Mo. App. 370; Bauer v. Cabanne, 11 Mo. App. 114. The defendants having failed to perfect their appeal within the time allowed by law, the circuit court acquired no jurisdiction over the subjectmatter of the suit, and rightfully dismissed the appeal.

The judgment is affirmed.

REYBURN and GOODE, JJ., concur.

SHANNON v. CARTER.

(Court of Appeals at St. Louis, Mo. Feb. 17, 1903.)

PARENT AND CHILD-SERVICES BY CHILDCOMPENSATION-PRESUMPTIONS -INSTRUCTIONS.

1. Evidence in an action by a decedent's daughter to recover from his estate for services examined, and held to warrant a finding that the services were rendered at the instance of the deceased, and upon his promise to pay.

2. An instruction, in an action by a decedent's daughter to recover from his estate for services, that if plaintiff continued to reside with her parents after attaining her majority, and did work as before, the presumption is that the services were gratuitous, and that the burden was on her to rebut this presumption, is not in conflict with another instruction that ordinarily a contract to pay for services would be presumed, but that a presumption might arise, under certain circumstances, that the services were gratuitous, and that in this case it was a question for the jury, taking into consideration the circumstances and the relationship of the parties, to determine if there was an implied contract between the parties.

3. In a suit by a decedent's daughter against his estate for services, an instruction that plaintiff could not recover unless she showed, by a preponderance of evidence, that the services were performed under an express or implied contract to pay for them, was proner.

4. When, in an action by a decedent's daughter for services, plaintiff's evidence showed that she came home at her father's request, and be gan work, with the understanding that she was to receive compensation, it was not error to instruct that she could recover for services from the time she began work up to the death of her father.

Appeal from circuit court, St. Francois county; Jas. D. Fox, Judge.

Action by Jennie Shannon against F. M. Carter, administrator of the estate of John C. Shannon, deceased. From a judgment for plaintiff in the probate court, defendant appealed to the circuit court, where a trial de novo was had. Judgment for plaintiff, and defendant appeals. Affirmed.

To balance due claimant....... $1,040 00 Commencing April 27, 1884, and ending April 14, 1901.

To this account there was attached an affidavit of the claimant, sworn to before her attorney, as notary public.

In the probate court, before a jury, the plaintiff recovered a judgment for $600, which was afterwards allowed by said court and classified. An appeal was taken from the probate court to the circuit court, where, on a trial de novo before a jury, a verdict was rendered in plaintiff's favor for $1,044. Judgment was entered accordingly, and an appeal taken to this court.

While there were many witnesses of either side, the evidence for the respective parties may be summarized as follows: The testimony of the plaintiff tended to prove that from April, 1884, until her father died, in April, 1901, she was the mainstay of her father's household; doing the domestic work, such as cooking, ironing, keeping the house in order, and occasionally doing outside work, such as feeding the stock. At an uncertain date-some time about 1882-she gave up her school, to go home to take charge of the housework, at the request of her father and mother; her mother being an old woman, and not able to do much, and her father an old man. She had a brother (Frank), who, it seems, from some mental weakness, was almost helpless, and was quite a burden on the family. There were a great many hands on the place at times, and the domestic work was onerous. If the witnesses for the plaintiff are to be believed-and several of them were her brothers and sisters-the brunt of that work fell on her, and she performed nearly all of it. There was testimony, too, that her father made statements on several occasions that she would be rewarded for it, and also testimony that he said in her presence that she should be remunerated, although no stipulated compensation was proven. The evidence was that such work as plaintiff performed was worth, in that community, about $2 a week. The evidence for the estate tended to show that the plaintiff did only her part of the work around her father's house and farm; that the family was a large one, there being many children, and all of them being reared to work. The other

GOODE, J. This suit was instituted in the probate court of St. Francois county on an account reading as follows:

4. See Executors and Administrators, vol. 22, Cent. Dig. 733.

course, the household duties fell more to the lot of plaintiff. The evidence for the defense tends, also, to show that plaintiff was often away from home on long visits, which extended over months; that she did not stop teaching school to resume domestic work in her father's household, but taught until the

school closed; and, generally, the evidence for the estate was that the duties performed by the plaintiff were those that a daughter still living at home after she had reached her majority would perform without expectation of other compensation than her living. No points are made in regard to the testimony.

For the plaintiff, the court instructed the jury that, where services are rendered, a contract or obligation to pay will be presumed, but that a presumption may arise from the relationship of the parties that the services were acts of gratuitous kindness; that in this case it was a question for the jury, taking into consideration all the circumstances, including the nature of the relationship of the plaintiff to her deceased father, and her condition in life, to determine whether there was an implied contract to compensate plaintiff for her services, or not, and if the jury found from the evidence that plaintiff rendered services for her father, in attending to his business and about his residence, and that it was understood between them that plaintiff should receive pay for such services, the jury should find the issues for the plaintiff, and allow her such sum as they might believe, from the evidence, she was entitled to, not exceeding $1.75 a week, with interest thereon at 6 per cent. from the date of the filing of the claim. The court further instructed the jury that if they found the issues, under the foregoing instruction, for the plaintiff, then, in ascertaining what compensation to allow her, they should confine the compensation for services to such as they might find were rendered to her deceased father between April 27, 1884, and April 14, 1901. The defendant requested an instruction that plaintiff could not recover, under the evidence; also the following: "(2) The court further instructs the jury that where the daughter has continued to live with her parents after arriving at majority, and continues to labor as before, the law presumes such services to be gratuitous, and there rests a burden on the claimant in this case to overthrow such presumption by preponderance of testimony; and, further, the courts look upon claims of this character with disfavor, and, to prove such a contract, the evidence must be clear and convincing, and the jury must believe from the evidence that there was at the time the services were rendered an expectation on the part of the plaintiff to receive pay for such services, and on the part of the deceased to pay for the same." The court refused both of those, but gave the following, of its own motion, in lieu of the second one: "(3) The court further instructs the jury that if the plaintiff in this case continued to live with her parents after arriving at her majority, and continued to labor as before, the law then presumes such services to be gratuitous, and the burden of rebutting such presumption by a preponderance of testimony rests on the plaintiff; and,

before you will be authorized in finding a verdict for the plaintiff, you must believe and find from the evidence in this case that there was, at the time the services were rendered, an expectation on the part of the plaintiff to receive pay for such services, and on the part of John C. Shannon to pay for the same. (4) The court instructs the jury that the law in this case is that the ordinary presumption of contract for valuable services rendered does not obtain, and the plaintiff cannot recover in this case unless she shows by a greater weight of testimony that the services sued for were performed under and by virtue of a contract, either express or implied."

The only errors assigned are in respect to the instructions, and the defendant contends. first, that there was no evidence to support the verdict; and, second, if there was, there were inaccurate charges given to the jury.

The error assigned in regard to the insufficiency of the evidence merits no attention whatever, for witness after witness swore the services rendered by plaintiff, extending throughout many years, were rendered at the instance of her father, and that he promised to pay for them.

As to the first instruction given for the plaintiff, it is copied from one approved and commended by the Supreme Court in a similar litigation. Sprague v. Sea, 152 Mo. 327. 53 S. W. 1074.

The third instruction given by the court of its own motion is conceded by defendant to be correct, but said to be in conflict with the first one given for the plaintiff, in that the latter declares that the law presumes the services were to be paid for, which presumption may be rebutted by circumstances, such as relationship of the parties, while the other declares the services are presumed to be gratuitous. We see no conflict in those two instructions at all. The first one was general in its opening clauses, and, as has been seen, told the jury, in approved words, that ordinarily, where services were rendered, a contract or obligation to pay would be presumed, but that a presumption might arise, under certain circumstances, that the services were gratuitous. The instruction then proceeded to inform the jury that in this particular case it was a question for them, taking into consideration all the circumstances, including the relationship of the parties, to determine whether or not there was an implied contract for compensation.

The third instruction hypothecated the defendant's theory, to wit, that the plaintiff simply continued to reside with her father after arriving at her majority, and continued her labors as before, and told the jury that in that case the law presumed whatever services she rendered were given gratuitously, that the burden was on her to rebut said presumption by a preponderance of the evidence, and that, before the jury would be justified in awarding her a verdict, they

must find from the evidence that she rendered the services with an expectation of payment. That was a correct instruction, on the defendant's theory of the case. Plaintiff's testimony tended to show that, instead of remaining at home after she reached her majority, and continuing her labors as before, she left home, and was called back by her father and mother, induced to give up another employment, and, at their request, remained with them and assisted them.

The fourth instruction given by the court of its own motion must have freed the jury from any doubt as to the legal presumption in this case, for it distinctly told them that the usual presumption of a contract to pay for valuable services did not obtain, and that the plaintiff could not recover unless she showed, by the greater weight of the testimony, that the services sued for were performed under and by virtue of a contract, express or implied.

As to the measure of plaintiff's recovery, the effect of the instructions was that plaintiff could only recover for such services as she rendered under a contract, express or implied, which recovery must be limited to the time between April 27, 1884. when she began the services, and April 14, 1901, when her father died. The complaint of appellant in regard to the measure of damages is that the jury were not advised to confine the damages awarded to compensation for such work as was performed after a contract or understanding was made between plaintiff and her father. This objection is untenable, because, if the evidence for the plaintiff was true, as the jury must have believed it to be, she began to work with the understanding that she should receive compensation in April, 1884. The effect of defendant's evidence was, of course, that she was rendering free services, and that there was no understanding at all in regard to compensation.

This case seems to have been carefully instructed, and, as the evidence was sufficient to warrant the verdict, the judgment is affirmed.

BLAND, P. J., and REYBURN, J., con

cur.

VAN BUREN COUNTY SAV. BANK v. MILLS.

(Court of Appeals at St. Louis, Mo. Jan. 17, 1903.)

BILLS AND NOTES-ACTIONS-PLEADING-JUSTICES OF THE PEACE-APPEAL-TRIAL DE NOVO-CIRCUIT COURT-CHANGE OF ISSUES

-VERDICT-EVIDENCE.

1. Where, in an action by a bank on a note, defendant pleaded in the justice court that the note was given to check against, and that defendant checked against the note as a deposit, but paid to the bank the full amount of the checks so drawn, and plaintiff wrongfully refused to credit the note with the amount so remitted, wherefore defendant says that the note was 72 S.W.-32

fully paid off, on the trial de novo in the circuit court evidence that defendant drew checks against the amount of the note, and afterwards paid the amount of such checks to the bank, was not such a change in the defense as is forbidden by Rev. St. 1899, § 4079, on appeal from a justice.

2. Where, in an action by a bank on a note, defendant claimed that the note was made to secure checks to be subsequently drawn, and that such note was not credited to his account, and that he had paid the amount of all checks drawn against the note, and the bank's ledger failed to show that the note was credited to defendant's account, though a witness for the bank testified that this was due to the fact that the face of the note was paid to defendant in cash, which defendant denied, a judgment in favor of defendant was not contrary to the weight of evidence.

Appeal from circuit court, Knox county; Edwin R. McKee, Judge.

Action by the Van Buren County Savings Bank against J. H. Mills. From a justice's judgment in favor of defendant, affirmed by the circuit court, plaintiff appeals. Affirmed.

Statement of the Case.

This action was instituted before a justice of the peace on a promissory note executed by the defendant to the plaintiff October 25, 1897, for $100, due 60 days after date. Defendant filed an answer in the justice's court, which, in addition to a general denial, contained the following special defense: "Defendant further says that he admits the execution of the note sued on, but says that said note, with other notes, were given to the said bank by this defendant for the purpose of checking against them, and to secure checks drawn by this defendant on said bank. That this defendant did draw checks on said bank at divers times against said notes as such deposit, but defendant says that at the time and at divers other times he remitted and paid to said bank the full amount of the checks so drawn on said bank by this defendant. But defendant charges and avers that said plaintiff wrongfully and fraudulently refused to credit said note and said other notes with the amounts so remitted by this defendant as aforesaid. Wherefore defendant says that said notes are fully paid off and discharged, and asks to be discharged, with costs." The testimony of Mills, which was corroborated by certain circumstances, was that he was in the cattle business, and frequently had occasion, when purchasing stock, to draw checks on the plaintiff, the Van Buren Savings Bank. and that, in view of checks which he might draw, he gave the note in suit to the bank, so that the amount of it might be credited to his account in the bank, against which he could then check without overdrawing. He testified further that he received no credit for the note in suit on his account with said bank, but that he afterwards paid to the bank the full amount of all of the checks he drew on it. On the other hand, the testimony of the cashier of the bank and of other witnesses is that Mills was paid the pro