Elliott v. Ward

• Decision Date: 08 May 1923
• Docket Number: No. 17847.,17847.
• Citation: 251 S.W. 71
• Parties: ELLIOTT v. WARD.
• Court: Missouri Court of Appeals

251 S.W. 71

ELLIOTT v. WARD.

No. 17847.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Rehearing Denied May 25, 1923.

Appeal from Circuit Court, Knox County; James A. Cooley, Judge.

"Not to be officially published."

Action by Benjamin F. Elliott against Glen Ward. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

Frank Robinson, of Edina (Higbee & Mills, of Kirksville, of counsel), for appellant.

R. J. Raleigh and Stewart & Stewart, all of Edina for respondent.

ALLEN, P. J.

This is an action for damages sustained by plaintiff by reason of the alleged wrongful shooting of plaintiff's cattle by the defendant, whereby some of said cattle were killed and others injured. The trial below resulted in a verdict for plaintiff for $647.72 actual damages and $210 punitive damages, and the defendant was allowed an appeal to this court.

Respondent has filed a motion to dismiss the appeal upon the ground of the insufficiency of the affidavit for appeal, and this motion was taken with the case.

Appellant's abstract of the record, as well as an additional abstract filed by respondent, shows that, in the affidavit for appeal filed by defendant, no attempt is made to follow the statute. The statute (section 1471, Revised Statutes 1919) provides that—

"No such appeal shall be allowed unless * * * the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court."

In the affidavit filed herein the affiant makes oath and says that he is the agent for the defendant and has authority to make and does make the affidavit for appeal from the judgment rendered herein in the circuit court of Knox county, "and asks the court to grant him, the defendant, an appeal from said judgment rendered in said circuit court of Knox county, to the St. Louis Court of Appeals."

It will be observed that the affidavit makes no reference to vexation or delay, nor does the affiant say that the appellant is aggrieved by the judgment or decision of the court. The only thing to which the affiant swears is that he is defendant's agent and authorized to make the affidavit; this being followed by a prayer that the appeal be allowed. It has long been the law of this state that, regardless of a recital in the record showing an order of the lower court granting the appeal, jurisdiction is not conferred upon the appellate court in the absence of an affidavit such as may be held to be a compliance with the statute, supra. The right of appeal is purely statutory, and,...