Bader v. Jones

• Decision Date: 22 May 1906
• Citation: 119 Mo. App. 685,96 S.W. 305
• Parties: BADER v. JONES.
• Court: Missouri Court of Appeals

96 S.W. 305

119 Mo. App. 685

BADER v. JONES.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

Dissenting Opinion, June 5, 1906.

1. JUSTICES OF THE PEACE—APPEAL—DEFECTIVE AFFIDAVIT—EFFECT.

Under Rev. St. 1899, § 4071, providing that the circuit court shall be possessed of a cause on lodgment of the papers therein on appeal from a justice, and section 4072, providing that no appeal shall be dismissed for want of a proper affidavit, a defective affidavit for appeal from a justice confers jurisdiction on the circuit court on the justice transmitting the papers in the case in the manner prescribed by section 4064, though section 4062 forbids him to allow an appeal where the affidavit is insufficient.

2. SAME—RIGHT TO DISMISS APPEAL—WAIVER.

Where appellee, in an appeal to the circuit court from a judgment of a justice, failed to avail himself of his right to demand by motion a sufficient affidavit for appeal, or have the appeal dismissed for the insufficiency thereof, as authorized by Rev. St. 1899, § 4072, he waived the defective affidavit and the circuit court had jurisdiction.

3. JUDGMENT — DEFAULT — RIGHT TO OPEN— TIME OF APPLICATION.

A justice of the peace rendered judgment in favor of defendant. Plaintiff took an appeal to the circuit court. Defendant failed to appear, and plaintiff recovered a judgment by default The judgment was recovered at the November term, 1902. At the February term, 1904, defendant filed a petition to set aside the judgment on the ground that the circuit court acquired no jurisdiction. Held, that the petition was filed too late, and was properly dismissed under the express provisions of Rev. St. 1899, § 777.

Bland, P. J., dissenting in part.

Appeal from Circuit Court, Pemiscot County; Henry O. Riley, Judge.

Action by John W. Bader, administrator of the estate of Charles Hill, deceased, against H. B. Jones. From a judgment dismissing defendant's petition to review the judgment of the circuit court rendered against him on appeal from a judgment of a justice's court in his favor, he appeals. Affirmed.

Plaintiff, as administrator of the estate of Charles Hill, deceased, commenced this suit in unlawful detainer before Charles A. Griffith, a justice of the peace in Pemiscost county, for the recovery of the possession of the parcel of land described in the complaint, and for one year's rent. The defendant filed a counterclaim. A change of venue was awarded to B. F. Allen, justice of the peace in Hayti township, in said county, where a trial was had resulting in a verdict and judgment for the defendant on his counterclaim. Within 10 days from the rendition of the judgment, plaintiff filed with the justice the following affidavit (omitting caption) for an appeal to the circuit court, to wit: "J. W. Bader, being duly sworn, upon his oath says that his application for an appeal is not made for vexation or delay, but because he believes the appellant to be injured by the judgment of the justice, in an action of unlawful detainer, and he believes himself entitled to recover possession of the premises described in the complaint." At the same time, the plaintiff filed his appeal bond with the justice, which was approved. The justice made no entry in his docket allowing the appeal, but transmitted the papers, with a transcript of his docket entries in the case to the clerk of the circuit court of Pemiscot county, who entered the case on the court's docket for the June term, 1902. Notice of the appeal was timely served on defendant. The cause was continued from the June to the November term, 1902, at which term, defendant failing to appear, the plaintiff filed his motion for judgment, which was sustained by the court, and judgment rendered for the plaintiff for the possession of the premises, $85 damages for their wrongful detention, and the values of the monthly rents were found to be $10.70. Shortly after the rendition of the judgment, it is recited in the transcript, Bader resigned as administrator, and J. D. Hoffman, public administrator of the county, took charge of Hill's estate as administrator de bonis non, and by order of the court was substituted as party plaintiff in the judgment. It is not stated just when this order of substitution was made. The inference is, and the presumption should be indulged, that it was at the same term the judgment was rendered. At the February, 1904, term of court, defendant filed his petition asking to have the judgment reviewed, set aside, and the case opened for hearing, alleging that he had a good and valid defense to the action; that he was prevented from attending the November, 1902, term of the court, by reason of suddenly becoming so sick as to be physically unable to attend court. It is also alleged in the petition for review that the circuit court acquired no jurisdiction of the cause by the attempted appeal. Plaintiff filed his motion to dismiss the petition, for the reason Bader was not the administrator of the Hill estate and was not a proper party to the proceedings for a review. The court sustained the motion to dismiss the petition in review. Defendant, after taking the proper steps to preserve his exceptions to the rulings of the court in dismissing his petition in review, appealed to this court.

W. W. Corbett, for appellant. S. J. Corbett and Duncan & Bragg, for respondent.

BLAND, P. J. (after stating the facts).

In respect to appeals from justices' courts, the statute (section 4062, Rev. St. 1899) provides: "No appeal shall be allowed unless the party applying therefor, or some person for him, will make affidavit that the application for an appeal is not made for vexation or delay, but because he believes the appellant is injured by the judgment of the justice, and stating whether such appeal is from the merits or from an order or judgment taxing costs." In Van Scoyoc v. Wolfe, 73 Mo. App., loc. cit. 432, the Kansas City Court of Appeals, in respect to a defective affidavit for an appeal, said: "While this defect did not altogether deprive the circuit court of jurisdiction, yet when attention was called to the insufficiency of the affidavit by motion of the opposite party, the defendant was bound to amend before the motion was determined, or his appeal should have been dismissed. It has been several times so ruled by this court. Spencer v. Beasley, 48 Mo. App. 97; Welsh v. Railway, 55 Mo. App. 599; Greischar v. Alexander, 56 Mo. App. 56. In this case the defendant, who was the appellant in the circuit court, did not offer to amend his affidavit. His appeal then should have been dismised." In Whitehead v. Cole & Rodgers, 49 Mo. App., loc. cit. 429, the same court said: "In every case of an appeal from one court to another it is a fundamental principle that it is essential to the jurisdiction of the appellate court that the appeal was taken in the manner prescribed by law, and that, where it is not so taken, the appellate court has no jurisdiction to proceed to an examination on the merits." This court, in Green v....