Collier v. The Langan & Taylor Storage & Moving Co.

• Decision Date: 17 December 1907
• Citation: 106 S.W. 593,128 Mo.App. 113
• Parties: COLLIER, Appellant, v. THE LANGAN & TAYLOR STORAGE & MOVING COMPANY, Respondent
• Court: Missouri Court of Appeals

106 S.W. 593

128 Mo.App. 113

COLLIER, Appellant, v. THE LANGAN & TAYLOR STORAGE & MOVING COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 17, 1907

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

AFFIRMED.

Judgment affirmed.

Brownrigg O'Brien & Mason for appellant.

(1) It is settled law in this jurisdiction that actual misdescription in a notice of appeal of the cause on appeal or of the judgment appealed from is a fatal defect. Tiffin v. Millington, 3 Mo. 418; McGinniss v Taylor, 22 Mo.App. 513; Hammond v. Kroff, 36 Mo.App. 118; Coal Co. v. Railroad, 48 Mo.App. 578; Drug Co. v. Hill, 61 Mo.App. 680; Stone v. Baer, 82 Mo.App. 339; Cooper v. Northern Acc. Co., 117 Mo.App. 423. (2) The Kansas City Court of Appeals and this court have steadily recognized the distinction between notices of appeal lacking in fullness and precision, by reason of omission and those fatally defective because of misdescription. Munroe v. Herrington, 99 Mo.App. 288; Igo v. Bradford, 110 Mo.App. 670; Teasdale & Co. v. Fruit Co., 120 Mo.App. 584. (3) It has been held, over and again, that actual knowledge of an appeal being taken, even though appellee stands by and sees it perfected, in no way affects the necessity of giving the statutory notice. Evans v. Railroad, 58 Mo.App. 427; Hathaway v. Ry. Co., 94 Mo.App. 343. (4) Evidence aliunde will not be received to show to what case the notice was understood to refer, where it contradicts the notice.

Kinealy & Kinealy for respondent.

(1) The notice of appeal served on appellant was sufficient. Teasdale & Co. v. Fruit Co., 120 Mo.App. 584; Munroe v. Herrington, 99 Mo.App. 288; Igo v. Bradford, 110 Mo.App. 670. (2) The error as to the date of the judgment was corrected by the reference to the files in the circuit court. Hays v. Perkins, 109 Mo. 102; West v. Bretelle, 115 Mo. 653; St. Louis v. Gaslight Co., 155 Mo. 1; Presnell v. Headley, 141 Mo. 187; Adler v. Railway, 92 Mo. 242; Railroad v. View, 156 Mo. 608; Rosenberger v. Railroad, 96 Mo.App. 504; Bambrick v. King, 59 Mo.App. 284; State v. McElheney, 20 Mo.App. 584.

OPINION

GOODE, J.

--The only point for decision in this appeal is whether or not a notice of an appeal by the defendant company (respondent here) from a judgment in favor of plaintiff, rendered by a justice of the peace, was sufficient. The defendant is engaged in the business of moving and storing furniture in the city of St. Louis and was employed by plaintiff, March 31, 1906, to remove certain personal property, chiefly clothing and household furniture, from plaintiff's residence 4124 Delmar boulevard in the city of St. Louis, to 4236 Cleve land avenue. The property was damaged by a fire while in transit and this action was instituted before a justice of the peace to recover the damages. In defense it was pleaded that plaintiff carelessly and negligently permitted a stove with live coals of fire in it to be loaded into the van along with his other furniture; that defendant's servants were not aware the stove contained fire, and the motion of the van jostled the coals out and ignited the property. The trial before the justice resulted in a verdict and judgment for plaintiff and defendant appealed to the circuit court. The judgment was rendered by the justice on August 6, 1906. The notice of the appeal was as follows:

"Needham C. Collier, Plaintiff, v. Langan & Taylor Storage & Moving Company, a corporation, Defendant.

"Before A. O'Hallaron, Justice of the Peace Within and for the fifth District, City of St. Louis, Mo.

"To the Plaintiff in the Above Entitled Cause, or His Attorney Before the Justice:

"You will please take notice that on or about the 16th day of August, 1906, the defendant appealed from the judgment rendered by the above-named justice of the peace in the above cause in favor of the plaintiff on the 26th day of July, 1906, for the sum of $ 350 and costs, and that said cause on appeal is now pending in the circuit court of the city of St. Louis, in Room 2 thereof, and is known as cause No. 43202A of said court.

"LANGAN & TAYLOR STORAGE & MOVING COMPANY."

It will be observed that the foregoing notice describes the judgment as having been rendered on July 26, 1906 instead of August 6th, the true date, and for this reason it is contended the notice was fatally defective. No doubt this point would be well taken if the notice was not otherwise sufficient to apprise the plaintiff beyond possibility of doubt in what cause the appeal had been taken, and to what court. But the title of the cause is correctly stated; also the justice of the peace before whom it had pended and who had given the judgment, the amount of the judgment and that the cause was then pending in...