Hoffman Brothers Piano Co. v. Morris

• Citation: 177 S.W. 320,190 Mo.App. 383
• Parties: HOFFMAN BROTHERS PIANO COMPANY, Appellant, v. MRS. A. J. MORRIS, Respondent
• Decision Date: 17 June 1915
• Court: Court of Appeal of Missouri (US)

177 S.W. 320

190 Mo.App. 383

HOFFMAN BROTHERS PIANO COMPANY, Appellant, v. MRS. A. J. MORRIS, Respondent

Court of Appeals of Missouri, Springfield

June 17, 1915

Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.

AFFIRMED. CERTIFIED TO SUPREME COURT.

Judgment affirmed.

M. R Lively for appellant.

Wolfe & Burnett for respondent.

STURGIS J. Farrington, J., concurs. Robertson, P. J., dissents in a separate opinion and deeming this opinion in conflict with certain decisions of the other Courts of Appeals the case is certified to the Supreme Court.

OPINION

STURGIS, J.

--This appeal is from a judgment of the circuit court affirming on motion the judgment rendered by a justice of the peace where the suit originated. The suit is in replevin for a piano and the defendant won in the justice court. The plaintiff appealed to the circuit court but not on the day on which the justice rendered his judgment. This necessitated that plaintiff give notice of appeal as provided by section 7582, Revised Statutes 1909. The circuit court sustained defendant's motion to affirm the judgment, alleging that plaintiff had failed to give a proper notice of the appeal before the second term of the circuit court after the appeal was taken as provided by section 7584, Revised Statutes 1909.

On the hearing of the motion to affirm there appears to have been filed with the papers in the case a notice of appeal entitling the cause as it was in the justice court and is here. To this notice is appended a proof of service of the same on the defendant, sworn to by one F. W. Patton, stating that a copy of such notice was delivered by him to the defendant on the date mentioned. The defendant, however, produced a notice which she swore was the notice delivered to her by Patton and the only notice of any kind served on her in reference to this or any other case. The caption of this notice entitles the case as "Hoffman Bros. Piano Company, a corporation, Plaintiff, v. Mrs. J. B. Morris, Defendant," instead of against Mrs. A. J. Morris, the defendant in this cause. Following this title of the case are the words: "Notice of Appeal. To Mrs. J. B. Morris, defendant in the above entitled suit." The notice is to the effect that the plaintiff has taken an appeal to the circuit court of Jasper county, Missouri, from the judgment of the justice, giving the name of the justice, the township and county, and the nature of the suit and that the judgment was for the defendant. The defect in the notice, which defendant claims rendered it insufficient to confer jurisdiction on the circuit court over the defendant on this appeal, is that the defendant is designated as Mrs. J. B. Morris instead of Mrs. A. J. Morris. The trial court held the notice insufficient and sustained the motion to affirm. The plaintiff then filed a motion to set aside the judgment of affirmance, supported by an affidavit, but the circuit court overruled this motion and plaintiff appeals.

We have no difficulty in holding that the return of service attached to the notice of appeal and sworn to by a private person, to the effect that he delivered to the defendant a copy of the notice correctly designating the parties to the suit, is no more than prima-facie evidence of such service and is open to contradiction. We held in Comstock v. Packing Co., 171 Mo.App. 410, 416, 156 S.W. 815, that the statute does not require that the notice of appeal and proof of service be filed with the trial court and that: "When a notice to affirm a judgment for failure to give proper and timely notice of the appeal has been filed this raises an issue of fact and the court may hear evidence thereon. [Calderwood v. Robertson, 112 Mo.App. 103, 105, 86 S.W. 879.]" The court, therefore, did not commit error in hearing evidence on the question of what notice of appeal was served on the defendant and in finding that the notice actually served described the case as being against Mrs. J. B. Morris, defendant, and was directed to such person. [Horton v. Railroad, 26 Mo.App. 349, 355.]

The hearing of the motion to affirm the judgment for want of a proper notice of appeal raised an issue to be tried and determined on the evidence adduced by both parties. The plaintiff should have produced on such hearing whatever evidence it had to sustain its position that it had served a proper notice of appeal. The plaintiff now contends that the affidavit which it filed in support of its motion to set aside the order affirming the judgment shows that a proper notice of appeal was in fact served. Such evidence should not be withheld, at least without good cause shown, until the motion to set aside the judgment of affirmance is presented and then presented in the form of an affidavit. We do not know to what extent the trial court weighed the evidence contained in the affidavit against that previously produced by defendant; but, in any event, there was no more than a conflict of evidence, the finding on which we will not disturb.

It also seems that, under the repeated decisions of our appellate courts, the notice of appeal actually served on defendant in this case is not sufficient to confer jurisdiction of the appeal on the circuit court. The rule is firmly established that the notice of appeal must properly designate by correct names the parties plaintiff and defendant in the case wherein the judgment appealed from is rendered. [McGinniss & Ingels Co. v. Taylor, 22 Mo.App. 513; Smith Drug Co. v. Hill, 61 Mo.App. 680 684; Comstock v. Packing Co., 171 Mo.App. 410, 420, 156 S.W. 815; Stone v. Baer, 82 Mo.App. 339; State to use v. Hammond, 92 Mo.App. 231; Hammond v. Kroff, 36 Mo.App. 118, 121.] This case is not distinguishable in principle from the cases above cited, and especially that of McGinniss & Ingels Co. v. Taylor, supra, wherein the notice of appeal designated C. C. Taylor as defendant instead of J. J. Taylor, and the notice was for that reason held insufficient. That case is bottomed on Tiffin v. Millington, 3 Mo. 418, wherein the notice of appeal designated the appealing garnishee as the defendant in the case. The Court of Appeals, after referring to the Tiffin case, supra, said: "It would appear from this that great particularity is required in such notice. And so it is stated in Wade on Notice (sec. 1211). It is evident that the notice is a thing apart from the knowledge, which the party to be notified, may have. The appellee may have actual knowledge of an appeal being taken. He may stand by and see it...