City of Caruthersville v. Barnett
| Decision Date | 07 July 1910 |
| Citation | 129 S.W. 1070,149 Mo.App. 162 |
| Parties | CITY OF CARUTHERSVILLE, Respondent, v. J. I. BARNETT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed and cause remanded. (with directions).
W. W Corbett for appellant.
(1) Defendant's motion to dismiss the appeal should have been sustained. There was no appeal bond and the plaintiff cannot cure this defect by giving simply a cost bond, as was done in this case, especially after a motion is made to dismiss for want of an appeal bond. R. S. 1899, sec. 4060; Devor v Stacker, 49 Mo.App. 547; Kelm v. Hunkler, 49 Mo.App. 664; Moulder & Simpson v. Anderson, 63 Mo.App. 34; Littlefield v. Lemley, 75 Mo.App. 511; Rocheport Bank v. Doak, 75 Mo.App. 332; Reinhardt v Varney, 72 Mo.App. 646.
Everett Reeves for respondent.
On or about the 16th day of March, 1907, appellant was notified by the city marshal of respondent city to appear before the police judge of said city to defend against a charge of fighting. The appellant appeared and was told by the police judge after a trial that he had been fined two dollars. His attorney filed an affidavit and bond in the usual form for an appeal to the circuit court of Pemiscot county. On the 28th day of March, the police judge filed with the clerk of the circuit court his transcript certifying that the same was a true copy from his docket and that all the original papers on file accompanied his transcript. At the next (June) term of the circuit, it was discovered that none of the original papers had been sent up by the police judge except the affidavit for appeal filed by the appellant. Whereupon, the usual order was taken upon the police judge requiring him to send up a complete transcript, but he answered that the papers had been destroyed by fire, so the papers had to be supplied, and what were supposed to be copies of the complaint and appellant's appeal bond were filed as copies; the case was continued at respondent's instance, and was again continued by respondent at the November term, 1907. At the February term, 1908, the respondent by its attorney filed a motion to dismiss the appeal for want of a proper affidavit for appeal, the affidavit having been made by appellant's attorney instead of appellant personally. The circuit judge sustained the motion, dismissed the appeal and ordered the case back to the police court. On the 14th day of May, 1908, after the appeal had been dismissed by the circuit court and remanded to the police court, there was a new city attorney, and the new city attorney had J. C. Burrus, a justice of the peace, to issue the usual summons against the appellant, wherein the respondent sued for the lump sum of $ 49.90, returnable on May 25, 1908. In the meantime, the clerk of the circuit court had issued a fee bill in the nature of an execution for the identical costs the city was then suing in the justice's court for, and the execution was by the clerk at the time placed in the hands of the sheriff, who was pressing it for collection.
On the return day of the justice's summons, appellant appeared and filed a motion to dismiss the case for failure of respondent to file an itemized statement of the account sued on, or a statement of its cause of action; whereupon, respondent's attorney asked leave to file an itemized statement of the account, which request the justice granted and overruled appellant's motion to dismiss; and thereupon, the respondent's attorney procured the file papers in the appeal case in the circuit court, above referred to, and copied word for word and figure for figure, the costs that had accrued in the circuit court in the former case, and filed the same in the justice's court as the respondent's cause of action. Appellant's objection to this proceeding of the respondent's attorney was disregarded by the justice, the parties went to trial, and the above stated facts having been fully developed, the justice dismissed the case at respondent's costs. The justice allowed the respondent to appeal without bond.
When the case again reached the circuit court, the appellant (herein) filed a motion to dismiss the city's appeal as follows: (Caption omitted.)
"Comes now the appellee in the above entitled cause and moves the court to dismiss the appeal herein for the reason that no appeal bond was given by app...
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