Eldon Ice & Fuel Co. v. Van Hooser

• Decision Date: 29 April 1912
• Citation: 147 S.W. 161
• Court: Missouri Court of Appeals
• Parties: ELDON ICE & FUEL CO. v. VAN HOOSER.

147 S.W. 161

ELDON ICE & FUEL CO. v. VAN HOOSER.

Kansas City Court of Appeals. Missouri.

April 29, 1912.

Rehearing Denied May 13, 1912.

1. APPEARANCE (§§ 9, 19)—GENERAL APPEARANCE —ACTS CONSTITUTING.

A defendant, who consents to a continuance to the next term, at the term at which the court denied his motion to dismiss based on the ground that no summons or petition was served on him, makes a general appearance, and the court acquires jurisdiction over his person.

2. APPEAL AND ERROR (§ 248)—QUESTIONS REVIEWABLE—EXCEPTIONS—NECESSITY.

Ordinarily, a failure to except to an adverse ruling prevents a review on appeal.

3. PLEADING (§ 72)—JURISDICTION—SUBJECT-MATTER.

The defect in a petition, sufficient save for the omission of a prayer, does not deprive the court of jurisdiction of the subject-matter, but

the petition may be amended so that the court may grant proper relief.

4. JUDGMENT (§ 248)—CONFORMITY TO PLEADING —VALIDITY.

Where the return of the sheriff and judgment in replevin described the property more in detail than the petition, but the judgment recited that the property therein described was the property described in the petition, the judgment was not erroneous because including property not mentioned in the petition.

Appeal from Circuit Court, Miller County; John M. Williams, Judge.

Action by Eldon Ice & Fuel Company against H. B. Van Hooser. From a judgment for plaintiff, defendant appeals. Affirmed.

W. S. Stillwell and Eugene Kraemer, both of Tuscumbia, and R. M. Embry, of California, for appellant. L. N. Musser, of Tuscumbia, W. S. Pope, of Jefferson City, and W. M. Williams, of Boonville, for respondent.

ELLISON, J.

Plaintiff's action is replevin, begun in the circuit court, where he recovered judgment.

The objections to the judgment relate principally to the jurisdiction of the trial court, both as to the person and subject-matter. The former objection need not be considered further than to say there was a general appearance made by defendant. There was a special appearance for the purpose of a motion to dismiss based on the ground, among others, that no "summons or petition was served on defendant." But afterwards there were several appearances generally. After the motions were overruled, and at the same term of court, a continuance was granted "by consent of parties" to the next term. That, alone, amounted to a general appearance.

The chief complaints concern the petition. It seems that a petition and affidavit were made in one paper. It was in the form of a petition and contained all things necessary to be stated in the affidavit when filed as a separate paper, and at the bottom an affidavit was attached; but the petition did not contain a prayer for judgment for a recovery of the property. During the pendency of a motion to dismiss, the trial court gave plaintiff permission to amend by adding the prayer, and the amendment was made; but there was no new affidavit.

When leave was given to amend, no exception was taken. The motion to dismiss was then overruled and no exception saved. Ordinarily, failure to except would leave no...