— On a trial of this case before a justice of the peace, defendant recovered judgment. Several days thereafter and in proper time, plaintiff took an appeal to the circuit court, but failed to notify the defendant, and no appearance being entered at the first term of the latter court, the cause was continued. On the second day of the following term the court permitted plaintiff to take a voluntary nonsuit. The next day the defendant filed motions to set aside the judgment of non-suit and to affirm the judgment appealed from, upon the ground that as the nonsuit was entered without his knowledge or consent he was deprived of the right to exercise the option accorded him under Revised Statutes 1899, section 4076. These motions were supported by proof, but were overruled, and defendant appealed.
The motions should have been sustained. The failure of plaintiff to- give the statutory notice gave defendant, under Revised Statutes, section 4076, the absolute right to control the disposition of the case. It was for him to say whether the appeal should be dismissed or the judgment affirmed. He was not suffered to exercise this option, and therefore was deprived of a substantial right. [Wolff v. Coffin, 46 Mo. App. 190; Hammel v. Weis, 54 Mo. App. 14; Holloman v. Railroad, 92 Mo. 284; Hathaway v. Railroad, 94 Mo. App. 343; Studer v. Federle, 57 Mo. App. 534.]
The judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views expressed.-
All concur.