Bartschat v. Downey
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 880,172 Mo.App. 632 |
| Parties | MINNIE BARTSCHAT, Respondent, v. JAMES DOWNEY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Chas. Claflin Allen Judge.
REVERSED AND REMANDED.
John H Overall for appellants.
(1) The appeal herein was properly taken from the justice's court in pursuance to Secs. 7568, 7569, 7570 et seq., R. S. 1909. Nothing in said sections requires appellant to pay any filing fee in the circuit court, nor is there any other statute requiring the payment of a filing fee of two dollars. Sec 4158, R. S. 1909, requires the payment of one dollar, known as the judge's fee, on filing of the transcript of the justice of the peace in the office of clerk of the circuit court. There is no statutory provision authorizing the circuit court to affirm the judgment of the justice of the peace for failure to pay this filing fee. (2) Where attorney for appellee pays this filing fee and appears in the circuit court for the purpose of having the transcript of the justice amended, he is then in court for general purposes and the circuit court acquires jurisdiction. Especially is this so after the circuit court has set aside its order affirming the judgment of the justice of the peace, and the case has been tried on its merits before a jury duly impaneled. (3) Where appellee has paid the circuit court filing fee which has been taxed as costs there is no obligation on the part of the appellant to refund this amount, as same is secured by cost bond. (4) The statutory notice of appeal is dispensed with where appellee's attorney has appeared in court and secured an amendment of the transcript of the justice of the peace and appellee has appeared in court in person and gone to trial on the merits of the case before any motion to affirm the judgment of the justice for failure to give notice of appeal has been filed. Payne v. Railroad, 75 Mo.App. 14; Brewing Co. v. Hauessler, 11 Mo.App 387; Parmelee v. Williams, 71 Mo. 410; Berry v. Trust Co., 75 Mo. 430; Page v. Railroad, 61 Mo. 78; Kerner v. Lead Co., 141 Mo. 248. (5) Notice of appeal is also waived by subpoenaing witnesses. Bates & Wright v. Scott Bros., 26 Mo.App. 428
A. B. Kammann for respondent.
In all classes of appeal from one court to another, it is a fundamental principle, essential to the jurisdiction of the appellate court, that the appeal was taken within time and in the manner prescribed by law and where it is not taken, the appellate court has absolutely no jurisdiction to proceed to an examination of the merits. Green v. Costello Adm., 35 Mo.App. 127; Devore v. Steckler, 49 Mo.App. 547. It is res adjudicata and if reopened it must be according to law. A literal compliance with the requirements of the statute is always held to be essential. Robinson v. Walker, 45 Mo. 117. This is a statutory notice and a statutory notice is not binding unless given as the law directs and allows. 22 Bouvier's Law Dict., 515.
--This suit involves the sum of twenty-nine dollars, 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 defendant's 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, discharging 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 Rule 33 of this court, the question attempted to be raised by the motion to dismiss will be regarded as having been waived.
II. The judgment of the circuit court, affirming the judgment of the justice, shows upon its face that it was rendered for failure on the part of the defendants appellants here, to prosecute their appeal in the circuit court from the judgment of the justice, both "by failing to pay the filing fee required by law and failing to give the notice required by law." The court, however, had previously set aside an order of affirmance for failure to pay the filing fee. And in sustaining appellee's motion the court said: "My jurisdiction is limited under the circumstances and I will affirm the judgment." As payment of the filing fee is in no way jurisdictional, the...
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