Davenport Vinegar & Pickling Works v. Shelley

• Decision Date: 08 May 1917
• Docket Number: No. 14683.,14683.
• Citation: 196 S.W. 1035
• Court: Missouri Court of Appeals
• Parties: DAVENPORT VINEGAR & PICKLING WORKS v. SHELLEY.

196 S.W. 1035

DAVENPORT VINEGAR & PICKLING WORKS v. SHELLEY.

No. 14683.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 5, 1917.

Opinion Filed May 8, 1917.

Rehearing Denied July 17, 1917.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by the Davenport Vinegar & Pickling Works against M. B. Shelley, trading as the M. B. Shelley Manufacturing Company. Judgment for plaintiff and orders overruling motion for new trial and in arrest of judgment, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly, of St. Louis, for appellant. Hart & Hart, of St. Louis, for respondent.

REYNOLDS, P. J.

The only point for determination in this case is the sufficiency of the notice of appeal from a judgment of a justice of the peace.

Respondent, plaintiff below, commenced its action before A. A. O'Halloran, Justice of the Peace of the Fifth District of the City of St. Louis, to recover $197.60 on account. The defendant, appellant here, filed his answer in the same court, denying indebtedness and also set up a counterclaim for $93.50, on which he prayed judgment. On a trial before the justice, there was a finding in favor of plaintiff and against defendant in the sum of $203.90, and for plaintiff on defendant's counterclaim, a judgment accordingly being entered on October 26th, 1909, in favor of plaintiff and against defendant in the sum of $203.90 and costs. From this defendant duly appealed to the circuit court of the city of St. Louis. Thereafter the defendant served upon the attorneys representing plaintiff before the justice, a notice, which, after the caption, which set out the names of the parties plaintiff and defendant and the name of the justice before whom the case had been heard, reads as follows:

"To the Above Named Plaintiff, or Its Attorneys, Hart & Hart — Take Notice:

"That an appeal has been taken from the judgment of the justice rendered on the 21st day of October, 1909, in favor of the Davenport Vinegar & Pickling Works, a corporation, and against M. B. Shelley, trading as M. B. Shelley Manufacturing Company, in the sum of 203.62 dollars; said appeal is addressed to the circuit court of the city of St. Louis, Missouri.

"[Signed] J. M. Lashly, for Defendant."

The attorneys for plaintiff accepted service of it in writing thus:

"We hereby acknowledge due and timely service of the within notice this 24th day of November, 1909."

On the filing of the transcript of the justice in the circuit court, plaintiff, by its attorneys, specially appearing for that purpose alone, filed a motion for affirmance of the judgment of the justice for various grounds, among others, failure to pay a filing fee and failure to serve appellant with sufficient notice of appeal, alleging that the notice which was served upon plaintiff's attorneys misdescribed the judgment. At a subsequent term defendant filed a motion for leave to amend his notice of appeal, correcting the recital in the notice of the date of the judgment, and plaintiff filed an amended motion to affirm. The court overruled defendant's motion for leave to amend his notice of appeal and at the same time overruled plaintiff's motion to affirm the judgment of the justice. Plaintiff excepted to this, filing a term bill of exceptions. Thereafter, at a subsequent term of the court, plaintiff still appearing specially again filed a motion to affirm the judgment because the notice did not describe the judgment of the justice and in fact misdescribed that judgment. The court sustained this motion and rendered judgment in favor of plaintiff in the sum of $203.90 and costs and in favor of plaintiff on defendant's counterclaim. Within due time defendant filed a motion for a new trial and in arrest of judgment which the court sustained. Thereafter, at a subsequent term the motion to affirm again coming on was sustained and judgment entered in favor of plaintiff against defendant in the sum of $203.90 and costs, and in favor of plaintiff on defendant's counterclaim. Motions by defendant for a new trial and in arrest of judgment were again interposed and overruled, exception saved and appeal perfected.

This is a condensed statement of the various proceedings in this matter pertinent to the point now involved, the cause in its course through the circuit court having been passed upon by three different judges at different terms.

The provision of the law requiring notice of the appeal from a judgment of the justice into the circuit court (section 7582, Revised Statutes 1909), has been before our courts, Supreme and Appellate, in a number of cases, commencing, so far as we are advised, with the decisions of our Supreme Court in Newberry v. Melton, 3 Mo. 121, the last case in which the matter was fully considered being by our court in Reinhart Grocery Co. v. Rust, 185 Mo. App. 279, 170 S. W. 375. Reviewing the prior decisions on the subject-matter, we held in this last case that where the only defect in the notice was the recital that the judgment of the justice had been rendered on March 9th, 1912, whereas in point of fact it had been rendered on March 8th, 1912, the notice otherwise being perfect, that for that defect alone there was no error in overruling the motion to affirm.

In the case at bar, however, there is not only a difference of five days between the date of the judgment as given in the notice and the date on which it was rendered, but also a difference in amount, the judgment of the justice being for $203.90 and the notice putting it at $203.62. Nor does the notice make any reference to the fact that the judgment of the justice was in favor of the plaintiff on the defendant's counterclaim.

In Cooper v. Northern Accident Co., 117 Mo. App. 423, 93 S. W. 871, the Kansas City Court of Appeals held the notice insufficient because while the judgment appealed from was rendered on the 17th day of December, 1903, the notice referred to it as having been rendered on the 14th of December, 1903. Citing Hammond v. Kroff, 36 Mo. App. 118, and many other cases, commencing with Tiffin v. Millington, 3 Mo. 418 (republication top page 295), the Kansas City Court of Appeals held that there was such a variance between the recital of the date of the judgment as given in the notice and the date of the judgment itself, that the judgment of the justice should be affirmed. So our court held in Clay, etc., v. Turner, 135 Mo. App. 596, 116 S. W. 480. The Springfield Court of Appeals, in Comstock v. Tegarden Packing Co., 171 Mo. App. 410, 156 S. W. 815, has reviewed most of the authorities on the matter, holding, among other things, that the giving and serving of the notice of appeal practically serves the same purpose as an original summons, and that actual knowledge that the appeal has been taken and the case lodged in the circuit court and there docketed for trial does not dispense with the giving and serving of a proper and timely notice of the appeal. Many cases are cited in support of this latter proposition, among others, Jordan v. Bowman, 28 Mo. App. 608, and Smith Drug Co. v. Hill, 61 Mo. App. 680. The conclusion of the Springfield Court of Appeals was, that when the statute prescribes a particular form and manner for the service of notice, no other form and manner will be effectual for any purpose without a waiver by the party entitled to receive it. Pointing out what is required in the notice of the appeal, the Springfield Court of Appeals in that case (171 Mo. App. loc. cit. 421, 156 S. W. 818) has said:

"A notice, although in writing and properly served on the appellee, will not bring him into court for the purpose of the appeal and will not confer jurisdiction on the circuit court to do anything in the case other than affirm the judgment or dismiss the appeal, unless it contain these, and perhaps other, essential elements."

It has been held that this requirement as to notice and its substance is mandatory and exclusive. Cooksey v. Kansas City, St. J. & C. B. R. R. Co., 17 Mo. App. 132.

It is argued that this motion to affirm required evidence to support the recital of outside facts. If this means that respondent should have shown affirmatively that it had no lawful notice, the point is not well taken. It was for appellant, movant below, to prove proper notice. Drake v. Gorrell, 127 Mo. App. 636, 106 S. W. 1080; Comstock v. Tegarden Packing Co., supra. Nor was the insufficiency of the notice waived by mere acceptance of service thereof. Studer v. Federle, 57 Mo. App. 534.

In Reinhart Grocery Co. v. Rust, supra, it is said that Clay v. Turner, supra, and Hammond v. Kroff, supra, should be and are overruled. While on their facts those cases do not correspond to the facts before us in the Reinhart Case, we think we went too far in overruling them. On the facts present in them, they are in accord with a long line of decisions by our own court as well as of the Supreme Court and the other Courts of Appeals and should not have been overruled. The Reinhart Case, on its facts, was correctly decided.

With every disposition to do away with mere naked technicalities, we hold that the decisions of our courts, Supreme and Appellate, have so thoroughly settled that the law on this matter demands an exact compliance with the statute in the description of the judgment appealed from, that we are not at liberty to depart from them. Here the judgment bore date of October 26th, 1909: the notice referred to a judgment of date October 21st, 1909: the judgment was not only for $203.90 but in favor of plaintiff on defendant's counterclaim. The docket entry of the justice, as in evidence reads:

"Now on said day and hour set for trial came plaintiff and defendant and by attorneys, the evidence being submitted and concluded, the justice finds for plaintiff and against the defendant, M. B. Shelley, trading as M. B. Shelley Mfg. Co., in the sum of two hundred and three and 90/100 ($203.90) dollars, and for plaintiff on defe...