Federal Chemical Co. v. Farmers Produce Exchange, 5927.

• Decision Date: 05 July 1938
• Docket Number: No. 5927.,5927.
• Citation: 118 S.W.2d 1067
• Parties: FEDERAL CHEMICAL CO. v. FARMERS PRODUCE EXCHANGE.
• Court: Missouri Court of Appeals

118 S.W.2d 1067

FEDERAL CHEMICAL CO. v. FARMERS PRODUCE EXCHANGE.

No. 5927.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

"Not to be published in State Reports."

Action by the Federal Chemical Company, a corporation, doing business as the Floyd Plant Food Company, against the Farmers Produce Exchange to enforce defendant's liability as indorser and guarantor on seventy-eight promissory notes. From a judgment for the defendant, plaintiff appeals.

Appeal dismissed.

T. Victor Jeffries and W. I. Mayfield, both of Lebanon, for appellant.

Breuer & Northern, of Rolla, and Bradshaw & Fields, of Lebanon, for respondent.

FULBRIGHT, Judge.

This cause originated in the circuit court of Laclede county by plaintiff filing a petition the purpose of which was to enforce defendant's liability as endorser and guarantor on seventy-eight promissory notes aggregating $1,976.79 principal, and interest in the amount of $813.30. Defendant filed its answer consisting of a general denial, and an affirmative defense, to which plaintiff filed its reply. The venue in said cause was changed to the circuit court of Phelps county where the cause was tried at the regular September, 1937, term of said court resulting in a judgment on a verdict of a jury in favor of defendant, from which judgment plaintiff has appealed to this court.

At the threshold we are confronted with defendant's motion to dismiss the appeal for the reason that no affidavit was made as required by Section 1020, R.S.Mo.1929, page 1295, § 1020, Mo.Ann.Stat. The purported affidavit in the cause is as follows:

                "State of Missouri  |
                                    }ss
                "County of Laclede  |
                "In the Circuit Court of Laclede County
                                Missouri
                                "September term, 1937
                "Federal Chemical Company, Plaintiff v.
                  Farmers Produce Exchange, Defendant
                         "Affidavit for Appeal
                

"Comes now T. Victor Jeffries, attorney of record for the plaintiff and being first duly sworn, makes oath and says; that the plaintiff is grieved by the judgment of the court, and that this appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment and decision of the court.

                         "(Signed) T. Victor Jeffries.
                

"Subscribed and sworn to before me this the 13th day of September, 1937.

                                   "___________
                                   "Circuit Clerk."
                

The motion rests upon the fact that the jurat is not signed by the clerk or other officer and was not sworn to as required by the mandatory provisions of the section of law above cited. In support of the motion four affidavits are attached thereto made by the circuit clerk and deputy circuit clerk of Laclede county and by the circuit clerk and deputy circuit clerk of Phelps county respectively. In three of the affidavits it is stated positively by affiant that neither did the appellant nor did any agent for the appellant at any time appear before affiant and "be sworn to the so-called affidavit or any other affidavit for appeal in the above mentioned proceedings." The affidavit of H. B. Perry, deputy circuit clerk of Phelps county, among other things, stated: "There was lodged and filed with me, and in the office of the Clerk of the Circuit Clerk, an affidavit for an appeal, styled `State of Missouri, County of Laclede, ss, in the circuit court of Laclede county, Missouri' and which affidavit bore the name of no officer authorized to administer an oath, and said affidavit showed on its face that it was not sworn to. And further stated that he was on duty in the court throughout the trial of the foregoing case, and during the time the appeal was allowed, and the so-called affidavit for appeal filed, and that he did not swear T. Victor Jeffries to said affidavit during that term or at any other time during which appeal was taken, and to his knowledge he was not so sworn to said affidavit by any one else."

In opposition to the motion plaintiff filed two affidavits, one by T. Victor Jeffries, who signed the purported affidavit for appeal, and another by H. B. Perry, deputy circuit clerk of Phelps county. The affidavit of T. Victor Jeffries, among other things, stated: "that the said deputy clerk was sitting at his desk in the court room at the time, and accepted said affidavit from this affiant and went through all the formalities to constitute a swearing to an affidavit, and the affiant says, he did in fact swear to said affidavit." The affidavit of H. B. Perry, among other things, stated: ...