Elsea v. Bass

• Citation: 77 S.W.2d 164,229 Mo.App. 250
• Parties: W. M. ELSEA, RESPONDENT, v. R. M. BASS, APPELLANT
• Decision Date: 13 November 1934
• Court: Court of Appeals of Kansas

77 S.W.2d 164

229 Mo.App. 250

W. M. ELSEA, RESPONDENT, v. R. M. BASS, APPELLANT

Court of Appeals of Missouri, Kansas City

November 13, 1934

Appeal from Circuit Court of Adair County.--Hon. Harry Rouse, Judge.

Judgment reversed.

Murrell & Murrell for respondent.

A. D Campbell and John Campbell for appellant.

OPINION

SHAIN, P. J.

This action in replevin, to recover the possession of an automobile, motor No. 4742468, was instituted in the Justice of the Peace Court of Adair County, Missouri. Judgment was for the plaintiff in the justice of the peace court and the defendant appealed to the circuit court of said county.

Trial was had before a jury in the said Circuit Court of Adair County, Missouri. At the close of all the evidence, the court directed the jury to find a verdict for the plaintiff. Said verdict was so rendered and judgment entered in accordance therewith. From this judgment, the defendant duly appealed.

The appellant made assignment of errors, as follows:

"1. The court erred in refusing appellant's instruction No 1.

"2. The court erred in giving respondent's instruction No. 1.

"3. The court erred in permitting the respondent to amend the statement in replevin.

"4. The court erred in overruling appellant's motion to dismiss the cause.

"5. The court erred in striking out evidence admitted on the part of appellant, viz., the assignment on the back of Exhibit B, and striking Exhibits A, C, D, F, G and H.

"6. The court erred in directing verdict for the respondent."

OPINION.

The appellant's points three and four, specified above, strike at the jurisdiction of the trial court and after a careful consideration of the abstract of the record and the presentation in the briefs filed in the case, we are compelled to conclude that the question of jurisdiction concludes the case. To the end of a clear understanding of the question, we set forth in full the pleading filed by the plaintiff in the justice of the peace court, as follows:

"Plaintiff states that he is lawfully entitled to the possession of one Ford coupe, motor No. 4742468, 1931 model, of the value of one hundred and fifty dollars; that the same is wrongfully detained by the defendant at the county aforesaid; that the same has not been seized under any process, execution or attachment against the property of the plaintiff; that the said property has been injured by ....; and that for the taking and detention of said property, and for all injuries thereto, the plaintiff is damaged .... dollars. Plaintiff further states that he will be in danger of losing his said property, unless it be taken out of the possession of the defendant.

"Wherefore, plaintiff prays judgment for the recovery of said property, and .... dollars damages for the taking and detention thereof, and for all injuries thereto.

"W. M. ELSEA.

"W. M. Elsea, plaintiff, makes oath and says that to the best of .... knowledge and belief, the facts and allegations contained in the above statement are just and true.

"....

"Sworn to and subscribed before me this 28th day of June, A. D. 1933.

"ALVAH BRASSFIELD,

"Justice of the Peace."

It will be noted that the usual form of affidavit is not filled out and is not signed by the plaintiff, although the justice of the peace attests as, "Sworn to and subscribed before me this 28th day of June, A. D. 1933."

The respondent herein, who was defendant below, filed a motion in the circuit court to dismiss because the plaintiff nor anyone for him had signed or filed the affidavit before the writ of replevin was issued and that the justice of the peace court had no jurisdiction, therefore, the circuit court attained no jurisdiction on appeal. The circuit court overruled the motion to dismiss and permitted the plaintiff to amend in the circuit court by signing the affidavit. Due objections were made and due exceptions saved to this action of the trial court.

The question of whether or not an affidavit is the basis of the justice court's jurisdiction in replevin has been frequently before the appellate courts of this State and the decisions have been pro and con on this question.

That the affidavit is the basis of the action, without which the justice court has no jurisdiction, was decided in Turner v. Bondalier, 31 Mo.App. 582.

In Zimmerman v. Downey, 66 Mo.App. 106, this court, and in Bingham v. Morrow, 29 Mo.App. 448, the St. Louis Court of Appeals, not distinguishing the justice of the peace statute from the statute controlling the circuit court, held that the affidavit was not necessary in the justice of the peace court. However, later in Undertaking Co. v. Jones, 134 Mo.App. 101, 114 S.W. 1049, the St. Louis court recognized the distinction and their decision was made to conform to the Turner case, supra.

The same question later arose in this court, White v. Grace, 192 Mo.App. 610, 184 S.W. 947, and this court held that an affidavit is the basis of jurisdiction in matters of replevin in the justice court. Since the decision in the case of White v. Grace, supra, the question has ceased to be a mooted one.

Conceding that an affidavit is requisite to the jurisdiction in the justice court, the question arises as to whether or not right of amendment exists on the showing made in the filed statement in the case at bar.

In So. Mo. Land Co. v. Jeffries, 40 Mo.App. 360, is found a case where the exact question as herein was presented. In this case the court held that the statement and affidavit as filed was not a nullity and therefore subject to amendment in the circuit court on appeal.

The opinion in the Land Co. case, supra, appears to us to be fair and just and if we were passing upon the issue, as one of first impression, we would so hold. However, we are confronted by an opinion by the Supreme Court, Robertson v. Robertson, 192 S.W. 988, and from a careful reading of same we conclude that the opinion of the Supreme Court is so out of harmony with the 40 Mo.App. 360, as to at least overrule same by implication. At least, we conclude that for us to hold that the statement in the case at bar could be amended, as amended by the trial court, we would be in conflict not only with the language used by the Supreme Court in the above opinion, but in conflict with Hargadine v. Van Horn, 72 Mo. 370; Norman v. Insurance Co., 237 Mo. 576, 141 S.W. 618, quoted in the opinion.

As to just what is understood by the term affidavit, the court in the Roberton case, supra, says:

"The minority opinion from Springfield Court of Appeals cites us to the case of State v. Headrick, 149 Mo. 396, 51 S.W. 99. This case simply says:

"'The word "affidavit," ex vi termini, means an oath reduced to writing. [1 Ency. Plead. & Prac. 309; 1 Am. & Eng. Ency. of Law (2 Ed.) 909, and cases cited.]'

"Nothing in that ruling precludes the idea that a signature must be attached to the writing. In Norman v. Horn, 36 Mo.App. 419, an affidavit is thus defined:

"'An affidavit is a written statement or declaration, sworn to before some officer authorized by law to administer oaths, and signed at the end by the affiant or deponent. [Hathaway v. Scott, 11 Paige Ch. (N.Y.) 173.]'

"This definition conforms with the ruling in Hargadine's case, supra."

Distinguishing from cases wherein defective affidavits have been allowed to be amended, the court, at l. c. 990, says:

"But these cases do not contravene the rule that an unsigned affidavit is no affidavit at all, nor the further rule that the absence of an affidavit defeats jurisdiction."

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