Motor Acceptance, Inc. v. Phillips
| Decision Date | 01 May 1928 |
| Docket Number | No. 20224.,20224. |
| Citation | 5 S.W.2d 681 |
| Court | Missouri Court of Appeals |
| Parties | MOTOR ACCEPTANCE, INC., APPELLANT, v. ALPIN A. PHILLIPS, RESPONDENT.<SMALL><SUP>*</SUP></SMALL> |
Appeal from the Circuit Court of the City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Jones, Hocker, Sullivan & Angert for appellant.
(1) Appeals from the justice court are perfected and valid upon a showing of either of the following: (a) That a bond and affidavit were filed by the appellant with the justice within the time provided for the taking of the appeal, or (b) an order was made by the justice within such time, allowing the appeal, even in the absence of such affidavit and bond. Revised Statutes 1919, secs. 2891, 2897; Ford v. Gray, 131 Mo. App. 240; Williams v. Kirby, 169 Mo. 622; Hartzfeld v. Taylor, 207 Mo. 236; Clapper v. Bradshaw, 163 Mo. App. 587; Drake v. Gorrell, 127 Mo. App. 638; Welsh v. Railroad, 55 Mo. App. 604; R.S. 1919, sec. 2903; Rothman, etc., Co. v. Kermis, 79 Mo. App. 111; Evans v. Automobile Co., 121 Mo. App. 272; Woodward v. Redden, 135 Mo. App. 541; Donohue v. Surety Ins. Co., 281 Mo. 276; Chas. Wolff Packing Co. v. Walker, 285 S.W. 795. (2) Independent of all other questions on this appeal, the transcript of the justice, being regular on its face, cannot be impeached collaterally by verbal testimony, and for that reason alone the motion to dismiss should have been overruled. Hartzfeld v. Taylor, 207 Mo. 236; Karnes v. Alexander, 92 Mo. 660; School Dist. v. Chappel, 155 Mo. App. 498; State v. Cass County, 137 Mo. App. 698; Bingham v. Kollman, 256 Mo. 573; Noeglin v. Edwards, 228 S.W. 764. A justice court nor a circuit court on appeal from a justice court can exercise no equitable jurisdiction. The record of the justice could have been avoided only in equity in a proceeding brought for that purpose. Caffery v. Mining Co., 95 Mo. App. 174; Townsend v. Alewel, 202 S.W. 447; Dowden v. Mfg. Co., 199 Mo. App. 657; State ex rel. v. Taylor, 210 Mo. App. 195; Pecke Bros. Com. Co. v. Sandstone Co-op. Co., 195 Mo. App. 417. (3) The transcript of the justice is regular on its face and shows that affidavit and appeal bond were duly filed within ten days, that the appeal was allowed within ten days and that the cause was regularly transferred to the circuit court. This record imports verity and cannot be impeached by verbal testimony in a collateral proceeding. 34 C.J. 517-518; Jeffries v. Wright, 51 Mo. 215; Myers v. Miller, 55 Mo. App. 338; Lingo v. Burford, 112 Mo. 149; Givens v. Burton, 183 S.W. 617. Such a record cannot be attacked collaterally even for fraud. Sisk v. Williams, 305 Mo. 328; Kaufman v. Realty Co., 301 Mo. 638; Howey v. Howey, 240 S.W. 450. Being regular on its face, the record of the justice imports absolute verity and cannot be impeached by verbal testimony, even though no objection was made to the verbal testimony offered. Nodaway County v. Williams, 199 S.W. 224. Even if it were proper to consider oral evidence, the rule applies that in order to set aside the judgment or record of a court the evidence must be clear and cogent and leave no room for reasonable doubt. Newel v. McDermand, 278 S.W. 818; McFadin v. Simms, 309 Mo. 312. (4) The motion to dismiss constitutes a collateral attack upon the order and record of the justice. 34 C.J. 520-522; Colvin v. Six, 79 Mo. 198, 200; Mueller v. Grunker, 145 Mo. App. 611; Smith v. Young, 136 Mo. App. 65; State ex rel. v. Ellison, 285 Mo. 301; Johnson v. Realty Co., 167 Mo. 325; Gunby v. Cooper, 177 Mo. App. 354; State ex rel. v. Central National Bank, 279 Mo. 228.
John T. Manning and Roland Van Hoefen for respondent.
(1) This appeal in the Court of Appeals should be dismissed for the reason that the appellant's abstract of the record conclusively shows that appellant failed to file a motion for a new trial or a motion for rehearing in the circuit court. Schuchort v. Brasler, 249 S.W. 164; Grossman v. Railroad, 248 Mo. 152; Dalton v. A.L. Register Co., 248 Mo. 150; Maplegreen Co. v. Trust Co., 237 Mo. 150; Holt v. Shryrock-Wright Grocery Co., 1 S.W. (2nd) 849; Hume v. Hathaway, 249 S.W. 421; Kalamazoo Loose L. Book Co. v. Con P. Curran Printing Co., 242 S.W. 982. (2) Appellate court can review only those matters of exceptions which are embraced within the motion for a new trial. Hopper v. Bowen, 249 S.W. 92; Sicker v. Rambauer, 193 Mo. App. 113. (3) A motion to dismiss an appeal in the circuit court is the proper remedy where an appeal had not been taken within ten days after rendition of the judgment. Moulden et al. v. Anderson, 63 Mo. App. 34; Rank v. Merrill, 172 Mo. App. 489; Moulden & Simpson v. Anderson, 63 Mo. App. 34; Peets v. Hoffman, 149 Mo. App. 153. (4) A justice of the peace has no authority to make a nunc pro tunc order allowing an appeal. Tyree v. Novran, 215 Mo. App. 630, 258 S.W. 717; Hedgewood v. Skiek, 233 S.W. 58.
This is an action in replevin, and originated before a justice of the peace in the city of St. Louis. The suit was brought by plaintiff, who is appellant here, against defendant, to recover an automobile.
The abstract of the record recites that on the 20th of October, 1926, the case was tried before a jury and a verdict was returned for the defendant for possession, and the value of the property was fixed at $453. From this judgment plaintiff appealed, or attempted to appeal, to the circuit court. The abstract recites that this appeal was taken on the 22nd of October, 1926, or two days after the trial of said cause in the justice court. When the case came up for trial in the circuit court, the defendant filed a motion to dismiss the appeal on the ground that the court had no jurisdiction for the reason that the judgment was rendered on the 20th day of October, 1926, and that no appeal was in fact taken until the 10th of November, 1926, and that said appeal was not allowed by said justice until the 10th day of November; that the justice of the peace fraudulently dated said appeal as having been allowed by him on the 22nd day of October, 1926, when in truth and in fact, said appeal was not filed with said justice, nor was said appeal allowed until the 10th day of November, 1926. It appears, that the court heard evidence on this question offered by both parties, and after hearing such testimony, dismissed plaintiff's appeal. From this action of the trial court plaintiff brings the case here on appeal, and files its purported bill of exceptions.
The defendant raises the point here that no motion for a new trial having been filed in the lower court, there is nothing here for review except the record proper, and therefore the judgment should be affirmed.
The appellant makes the point that the judgment entries of the justice of the peace are a part of the record proper, and inasmuch as this record of the justice of the peace shows that the appeal was taken within time, that such judgment imports verity and cannot be collaterally attacked by such a motion as defendant files. It is also insisted that the motion to dismiss is a part of the record proper and that it is not necessary to file any motion for a new trial to have the court's action reviewed.
As a general proposition, of course, when an entry which is required by law to be made in the justice's docket is regularly entered, it imports verity and is the...
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