The opinion
Ewing, C.
This ivas a suit before a justice of the peace • to recover damages of defendant for the alleged killing of a brood sow. There was judgment by default before the justice, the defendant failing to appear before said court. There was afterwards an application for an .appeal to the circuit court, which was granted, but before which there was no motion or application before the justice to set aside the default.
This is the only question necessary to be noticed as it is decisive of the case. Revised Statutes, 1879, section 3040, provides that: “But no appeal shall be taken from .a judgment by default, or non-suit, unlesg within ten days after the rendering of such judgment, application shall ' have been made to the justice by the party aggrieved, to .set the same aside, and such application shall have been refused.” In this case no such application was made, and the motion to dismiss the appeal was properly sustained. But the judgment of the circuit court against the sureties on the appeal bond, was erroneous. The justice having no power to grant the appeal, the appeal *125 bond was void, as far as the sureties are concerned, and the circuit court, therefore, could not enter judgment against them. The only valid judgment the circuit court could enter was simply a dismissal of the appeal, with judgment for costs against the defendant, and just so far its judgment is affirmed. Smith v. Railroad Co., 53 Mo. 338 , is a case precisely similar to this. Kinser v. Shands, 52 Mo. 326 ; Garnett v. Rodgers, 52 Mo. 145 ; Laughlin v. January, 59 Mo. 383 .
All concur, except Henry, C. J., absent.