Bartschat v. Downey

• Decision Date: 08 April 1913
• Citation: 172 Mo. App. 632,155 S.W. 880
• Parties: BARTSCHAT v. DOWNEY et al.
• Court: Missouri Court of Appeals

155 S.W. 880

172 Mo. App. 632

BARTSCHAT v. DOWNEY et al.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

1. APPEAL AND ERROR (§ 643) — RECORD — WAIVER OF DEFECTS IN OBJECTIONS.

Under St. Louis Court of Appeals Rule 33 (129 S. W. v), providing that if a respondent wishes to question the sufficiency of the appellant's abstract he shall file his objections in writing within ten days after service of a copy of the abstract, and that if he omits to file such objections the court will, if it deems proper, disregard any objection thereafter made, where respondent failed to file written objections, the failure of the appellant to so prepare the abstract that it could be determined what portion was the record proper and what portion matters of exception was waived and would not support a motion to dismiss the appeal thereafter made.

2. JUSTICES OF THE PEACE (§ 160) — APPEAL — SERVICE OF NOTICE OF APPEAL — NECESSITY.

While the granting of an appeal by a justice of the peace gives the circuit court jurisdiction over the cause, the service of notice of appeal is indispensable to jurisdiction over the person of appellee unless waived by his voluntary appearance.

3. JUSTICES OF THE PEACE (§ 160) — APPEAL — SERVICE OF NOTICE OF APPEAL — WAIVER.

The failure to serve notice of an appeal from a judgment of a justice of the peace on the appellee was waived where the appellee went to trial on the merits, since any act implying that the appellee is in the circuit court for general purposes constitutes a waiver and confers jurisdiction over the person of the appellee upon that court.

4. JUSTICES OF THE PEACE (§ 158) — APPEAL — WAIVER OF DEFECTS AND OBJECTIONS.

The failure of a party appealing from a judgment of a justice of the peace to pay the fee for filing the transcript in the office of the clerk of the circuit court was merely a failure to prosecute the appeal with due diligence and was waived by the appellee by going to trial and introducing her evidence.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Minnie Bartschat against James Downey and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

John H. Overall, of St. Louis, for appellants. A. B. Kammann, of St. Louis, for respondent.

ALLEN, J.

This suit involves the sum of $29, being an alleged balance due plaintiff for domestic services rendered defendants. The action was begun before a justice of the peace, where, on December 29, 1910, plaintiff had judgment. Within ten days thereafter an appeal was duly taken by defendants to the circuit court of the city of St. Louis. Thereafter, apparently on January 12, 1911, the transcript of the proceedings before the justice was lodged in the office of the clerk of the circuit court of the city of St. Louis. Defendants (appellants) not having paid the filing fee therefor, the same was paid by the plaintiff's counsel on February 16, 1911. On February 21, 1911, and during the February term, 1911, the circuit court, upon motion of plaintiff's counsel, entered judgment affirming the judgment of the justice, for failure of defendants to pay the said filing fee. Thereafter, at the same term, on March 6, 1911, upon motion of defendants' counsel the said judgment of affirmance theretofore rendered was set aside. On June 12, 1912, the cause came on for hearing before the court and a jury. Plaintiff's counsel was not present in court at the time; but plaintiff, who was present, declined to submit to a continuance, and the cause proceeded to trial. Plaintiff's evidence was heard, and defendants were proceeding with their defense, when counsel for plaintiff appeared and moved the court, ore tenus, to affirm the judgment of the justice, on the ground that the circuit court had no jurisdiction to hear and determine the cause, because of the failure of defendants to pay the filing fee therein, and their failure to give the statutory notice of appeal. The court sustained this motion, discharged the jury, and entered judgment affirming the judgment of the justice. After unsuccessful motions for a new trial and in arrest, defendants have appealed to this court.

I. The first thing presenting itself for our consideration is a motion to dismiss the appeal in this court, filed by respondent. The point to this motion is that appellants' abstract of the record is, as respondent says, such that respondent is unable to determine from an inspection of it what portion thereof is record proper and what matters of exception. We must decline to consider, however, the question presented by this motion, for the reason that appellants' abstract was filed in this court on February 8, 1913; and respondent's motion to dismiss was not filed until March 3, 1913, the day before the cause was set for hearing. No written objections to the abstract having been filed within ten days after the filing thereof, as required by...