Arkansas & O.R. Co. v. Powell

CourtCourt of Appeal of Missouri (US)
Writing for the CourtReyburn
Citation104 Mo. App. 362,80 S.W. 336
PartiesARKANSAS & O. R. CO. v. POWELL.
Decision Date12 April 1904
80 S.W. 336
104 Mo. App. 362
ARKANSAS & O. R. CO.
v.
POWELL.
St. Louis Court of Appeals. Missouri.
April 12, 1904.

APPEAL — AFFIDAVIT—SUFFICIENCY—JURISDICTION—WAIVER OF DEFECT BY APPELLEE.

1. Rev. St. 1899, § 808, provides that no appeal shall be allowed unless appellant file an affidavit stating that the appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment of the court. Held, that an affidavit reciting that "the appeal herein prayed for is not taken for the purpose of vexation or delay, but that justice may be done the plaintiff in the premises," was insufficient to confer jurisdiction on the appellate court.

2. Where the affidavit for appeal is insufficient to confer jurisdiction, the appellee cannot waive the question as to the sufficiency of the affidavit, or estop himself from urging its insufficiency by appearing in the appellate court, consenting to a continuance, or by any other act.

Appeal from Circuit Court, McDonald County; Geo. W. Thornberry, Judge.

Suit by the Arkansas & Oklahoma Railroad Company against J. D. Powell. From a judgment in favor of defendant, plaintiff appeals. Dismissed.

J. A. Rice and McGill & Lindsey, for appellant. Geo. Hubbert and White & Clay, for respondent.

Statement.

REYBURN, J.


Appellant brought this action to the August term, 1901, of the circuit court of McDonald county, upon an agreement executed by respondent jointly with other subscribers thereto, which was made an exhibit to the petition. The petition contained allegations of plaintiff's legal existence and lawful powers, and that in 1899 it located and constructed, and since completion had continuously operated, an extension of its line of railroad from the town of Gravett, Benton county, to the town of Southwest City, in McDonald county; that, before beginning such extension, defendant and other citizens of Southwest City and vicinity, in consideration of the benefits to be derived by them from the construction and operation of such extension, as an inducement to plaintiff to construct and operate it, executed and delivered an obligation dated March, 1899, whereby they undertook to procure free of cost to plaintiff, and at their expense for plaintiff, depot and switching grounds at Southwest City, of the extent mentioned in such obligation, and to procure the right of way of the dimensions mentioned therein, which further provided that the liability of defendant and other subscribers should not exceed 3 per cent. of the aggregate cost of procuring such depot, switching grounds, and right of way; that, by terms of this obligation, such depot, switching grounds, and right of way were to be procured by defendant and others as required for use of plaintiff in construction of such extension, and defendant and his co-obligors were notified, and procured part at their own cost, but the greater part was not procured by such obligors, and plaintiff was compelled to obtain them at cost of...

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5 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...Ohio St. 444; Dolph v. Nickum, 2 Ore. 202; Cook v. Challis (Kan.), 40 P. 643; Lavalle v. Skelly, 90 N.Y. 549; Arkansas v. Ry. Co. (Mo.), 80 S.W. 336; Bank v. Wells (Cal.), 90 P. 981; Ass'n. v. Wilkins, 71 Cal. 626; 12 P. 798; Hastings v. Halleck, 10 Cal. 31; Koutnick v. Koutnick, 196 Ill. 1......
  • Griffith v. Walesby, No. 18496.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Marzo 1936
    ...but because the affidavit did not state what the affiant believed about the matter. The affidavit, in Arkansas, etc., R. Co. v. Powell, 104 Mo.App. 362, loc. cit. 367, 80 S.W. 336, 337, while the opinion states, that "a substantial, if not literal, compliance with the statute, is required,"......
  • Hitt v. Kansas City
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 1905
    ...That the statute must be strictly complied with has been consistently held by the appellate courts of this state. Railroad v. Powell, 104 Mo. App. 362, 80 S. W. 336; Schnabel v. Thomas, 92 Mo. App. 180; Thomas v. Ins. Co., 89 Mo. App. 12. It is our opinion, however, that the affidavit is su......
  • State v. Jahnke, No. 15372.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Junio 1925
    ...appellate court acquires no jurisdiction—citing State ex rel. v. Woodson, 128 Mo. 497, 515, 31 S. W. 105; Ark., etc., R. Co. v. Powell, 104 Mo. App. 362, 80 S. W. 336; O'Bannon v. R. Co., 106 Mo. App. 316, 320, 80 S. W. Also, in State ex rel. v. Porterfield, 258 S. W. 722, 723, this court h......
  • Request a trial to view additional results
5 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...Ohio St. 444; Dolph v. Nickum, 2 Ore. 202; Cook v. Challis (Kan.), 40 P. 643; Lavalle v. Skelly, 90 N.Y. 549; Arkansas v. Ry. Co. (Mo.), 80 S.W. 336; Bank v. Wells (Cal.), 90 P. 981; Ass'n. v. Wilkins, 71 Cal. 626; 12 P. 798; Hastings v. Halleck, 10 Cal. 31; Koutnick v. Koutnick, 196 Ill. 1......
  • Griffith v. Walesby, No. 18496.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Marzo 1936
    ...but because the affidavit did not state what the affiant believed about the matter. The affidavit, in Arkansas, etc., R. Co. v. Powell, 104 Mo.App. 362, loc. cit. 367, 80 S.W. 336, 337, while the opinion states, that "a substantial, if not literal, compliance with the statute, is required,"......
  • Hitt v. Kansas City
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 1905
    ...That the statute must be strictly complied with has been consistently held by the appellate courts of this state. Railroad v. Powell, 104 Mo. App. 362, 80 S. W. 336; Schnabel v. Thomas, 92 Mo. App. 180; Thomas v. Ins. Co., 89 Mo. App. 12. It is our opinion, however, that the affidavit is su......
  • State v. Jahnke, No. 15372.
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Junio 1925
    ...appellate court acquires no jurisdiction—citing State ex rel. v. Woodson, 128 Mo. 497, 515, 31 S. W. 105; Ark., etc., R. Co. v. Powell, 104 Mo. App. 362, 80 S. W. 336; O'Bannon v. R. Co., 106 Mo. App. 316, 320, 80 S. W. Also, in State ex rel. v. Porterfield, 258 S. W. 722, 723, this court h......
  • Request a trial to view additional results

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