City of Lake Winnebago v. Sharp

• Decision Date: 31 May 1983
• Docket Number: No. 64163,64163
• Citation: 652 S.W.2d 118
• Parties: CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Douglas D. SHARP, Defendant-Appellant. CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Roger BRENNER, Defendant-Appellant. CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Dick BURTON, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 118

652 S.W.2d 118

CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Douglas D. SHARP, Defendant-Appellant.

CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Roger BRENNER, Defendant-Appellant.

CITY OF LAKE WINNEBAGO, Plaintiff-Respondent, v. Dick BURTON, Defendant-Appellant.

No. 64163.

Supreme Court of Missouri,

En Banc.

May 31, 1983.

Willard B. Bunch, John Edward Cash, Kansas City, for defendants-appellants.

Lynn K. Ballew, Harrisonville, for plaintiff-respondent.

RENDLEN, Chief Justice.

These consolidated cases originated in the Lake Winnebago Municipal Division of the Circuit Court of Cass County. After their separate convictions the defendants sought to appeal to the circuit court for trial de novo. On motion of the city the circuit court remanded the cases to the municipal division because the affidavits for appeal were not signed. Defendants' motions to set aside the remand, accompanied by signed affidavits, were denied, and the defendants appealed to the Missouri Court of Appeals which reversed the convictions by 2 to 1 vote and remanded for trial in the circuit court. Judge Turnage, dissenting, certified the cases here asserting conflict with prior decisions of this Court. We are now fully possessed of the case as on initial appeal. We agree with the majority of the court of appeals, and make substantial use of Judge Nugent's opinion without employing quotation marks.

Defendants were charged with violations such as building a barbeque pit without a permit, trespass on the waters of Lake Winnebago and operating a boat without proper lighting. Defendant Sharp was fined a total of $150 and assessed $28 in costs. Defendant Brenner was ordered to pay $100 plus $14 costs and defendant Burton $400 plus $42 costs. An unsigned affidavit for appeal in the form suggested by Rule 37.1171 ¹ and a signed bond form like that suggested in Rule 37.1172 were timely filed for each defendant. In each case the unsigned affidavit appears to have been attached to the signed bond. Each identified the case and court from which the appeal was taken. In each case these forms were forwarded to the circuit court with a corresponding transcript on appeal, which fully identified and recited the history of the case. Each transcript included the certificate of the municipal judge that the defendant had "filed affidavit and bound [sic] for appeal as provided by law."

Asserting that defendants had failed to comply with the Rule 37.78 and § 479.200, RSMo 1978, and that such compliance was necessary to confer jurisdiction of the cases on the circuit court, the city moved the circuit court to remand the cases to the municipal division. The court sustained the motion and ordered the cases remanded. A day later, defendants filed in the circuit court their respective signed affidavits for appeal in the form suggested by Rule 37.1171 and moved the circuit court to set aside its orders of remand and to restore the cases to the docket for trial de novo. These motions were denied and these timely appeals filed.

In 1959 this Court adopted and promulgated for use beginning July 1, 1960, Rule 37 governing procedure in municipal courts. ² Rule 37.02 provides that these rules "shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unjustifiable expenses and delay." Appended to Rule 37 are "suggested forms," separately entitled Rule 37.1160 through Rule 37.1174. These forms are referred to as "suggested" in contrast with those procedural forms appended to the Rules of Criminal Procedure and the Rules of Civil Procedure. This Court's order of July 1, 1959, in pertinent parts reads:

It is ordered that ... the following Rules of Practice and Procedure in all cases in Municipal Courts ... be established and adopted, effective April 1, 1960, to wit: Rule 37.01 to 37.115, both inclusive, and Rules 37.116 to 37.1174, both inclusive, (suggested forms) ....

Rule 37.78 provides in its entirety as follows:

A defendant and the municipality shall be entitled to appeal from a judgment to the circuit court of the county or such other court having jurisdiction of such appeals within time and in the manner provided by law.

Section 479.200.2 gives a defendant tried before a municipal judge a right to a trial de novo before a circuit judge or an associated circuit judge. The statute specifically provides that:

An application for a trial de novo shall be filed within ten days after judgment and shall be filed in such form and perfected in such manner as provided by supreme court rule. ³

Neither the statute nor Rule 37.78 requires use of an affidavit or any particular form of application or notice of appeal. The application for trial de novo markedly differs from the notices of appeal required for use in appealing criminal and civil cases. In those appeals, under Rule 30.01(e) and Rule 81.08(a), the appellant must set forth the information detailed in either Civil Procedure Form 8-A or Form 8-B ⁴. Moreover, the latter rules are themselves quite specific as to the content of such notices ⁵ and do not rely upon the forms to direct the manner in which appeals shall be perfected.

Against this background, we must decide whether unsigned "affidavits for appeal" sufficed to perfect defendants' applications for trial de novo and to confer jurisdiction upon the circuit court and whether defendants were obligated to use only the form suggested in Rule 37.1171.

The facts compel the conclusion that, despite an apparent good faith effort to comply with what appeared to be the rule, someone blundered and by inadvertence obtained the signatures of each defendant on only one of the forms in each case instead of on the two prepared forms in each case. ⁶ The fact that the suggested forms were correctly prepared for each defendant itself attests the good faith effort.

The city contends, nevertheless, that the use of the suggested form has become mandatory because of the statute's direction that an application for a trial de novo be in such form as "provided" by Supreme Court Rule. ⁷ But this Court has not "provided" mandatory forms for such appeals; it has provided "suggested" forms. Unlike the rules pertaining to appeals from civil and criminal cases, Rule 37.78 makes no express provision as to the content of an application for trial de novo and does not require the use of the suggested form set out in Rule 37.1171. The language of the applicable statute and rules does not support the city's conclusion.

The purpose of a notice of appeal of a judgment of a justice of the peace was to notify the appellee that an appeal had been taken and would be prosecuted. Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267, 268-69 (1920); Evans v. Hannibal & St. J. Ry., 58 Mo.App. 427, 431 (1894).

In Davenport, this Court held that if the knowledge of the appeal came to the attorneys for the plaintiff-appellee by means of the notice, that notice was sufficient despite discrepancies in it as to the date and amount of the judgment and the adverse ruling on defendant's counterclaim. If the notice enabled the successful party reasonably to identify the judgment appealed from and informed him of the taking of the appeal, the "notice would be a substantial compliance with the statute, and would meet the demands of justice. The law requires nothing more." Munroe v. Harrington, 99 Mo.App. 288, 73 S.W. 221 (1903). See Conrey v. Davis, 216 Mo.App. 341, 256 S.W. 519 (1923). ⁸

Ninety years ago, the court in Holschen Cola Co. v. Missouri Pacific Ry., 48 Mo.App. 578, 580 (1892) said:

There has been some very technical law written by the courts of this state on the sufficiency of notices of appeal from judgments rendered in justices' courts, and it is quite difficult to defend the rulings, when the informality and simplicity in the proceedings of such courts are considered.

The only object of the notice, the court held, is to notify, and if it does so it is adequate.

The focus on the courts' attention in those cases was not on the form of the notice or affidavit for appeal, but upon the accomplishment of the purpose of the notice and, upon whether from the notice a reasonable person could readily discern the appellant's intent. An application for a trial de novo or a notice of appeal is not a more effective application or notice because it is in the form of an affidavit. The fact they took the form of affidavits was not essential to the notices. Accomplishment of the purposes of the notice is in no way served by couching it in the form of an affidavit. Nor is the function of the notice (that is, the means by which the notice achieves its ends or purpose) in any way enhanced by use of the affidavit form. In the adoption of the Rules of Civil Procedure in 1944, this Court abandoned use of the affidavit of appeal in favor of a simple notice of appeal.

Whatever its form, the notice of appeal has several functions. First, it advises the clerk of the court appealed from that a party will seek review or trial de novo and that the transcript and other court papers must be forwarded to the superior court. Second, it notifies respondent of the appeal and, when served upon or waived by him, brings respondent under the jurisdiction of the appellate court. ⁹ Third, it triggers a stay of execution. Rule 37.81. See also Rules 30.15 and 81.09. Finally, it notifies the superior court of the transfer to it of the jurisdiction of the case. In Daugherty v. Perky, 195 Mo.App. 8, 177 S.W. 786 (1915), it is said:

The giving of such notice is jurisdictional. The notice is analogous to a summons--is the statutory means by which the appellee is called upon to appear in the circuit court and submit himself to its jurisdiction. That court becomes possessed of jurisdiction over the cause by the filing of the transcript and papers by the justice, but acquires jurisdiction over the person of the appellee by the service of the...