Potts v. Nahm
| Decision Date | 22 March 1910 |
| Parties | THOMAS H. POTTS, Respondent, v. ALBERT M. NAHM, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted March 17, 1910.
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
AFFIRMED.
Judgment affirmed.
R. L Shackelford and J. C. Kiskaddon for appellant.
(1) A mistake in a notice of appeal from the judgment of a justice of the peace as to the date of the judgment appealed from will not deprive the appellant of the benefit of his appeal, if it appears that there is enough in the notice to apprise the appellee what judgment was appealed from, or if it is not shown that there is some other judgment, or unless it appears that the appellee has been misled by the notice to his injury. The object is to notify, and if under a fair consideration of the notice it does so, it is sufficient. Holshen v. Railroad, 48 Mo.App. 578; Collier v. Storage Co., 128 Mo.App. 113; Taff v. Insurance Co., 127 Mo.App. 308; Monroe v. Herrington, 99 Mo.App. 288; Igo v. Bradford, 110 Mo. 670; Teasdale v. A. F. P. Co., 120 Mo.App. 584. (2) The statute provides that in appeals from courts of justices of the peace the trial in the appellate court shall be governed by the practice in said court. R. S., sec. 4080. (3) The code of practice authorizes, or when it is in furtherance of justice and does not affect the substantial rights of the adverse party, requires that permission be given to amend any of the proceedings in a cause, even "process," at any stage of the case, either before or after judgment. R. S., secs. 657, 659, 660, 672, 673. (4) It has been invariably held that obvious clerical errors may be amended at any stage of the proceedings in a case. Hackett v. Van Frank, 119 Mo.App. 648; Metz v. Wright, 116 Mo.App. 631; Elliott v. Buffington, 149 Mo. 663; Water Co. v. Dreyfus, 104 Mo.App. 434; State v. Baird, 108 Mo.App. 163; Jarbee v. Hillman, 19 Mo. 141; Jump v. McClurg, 35 Mo. 193; Jones v. Cox, 7 Mo. 173; Moss v Thompson, 17 Mo. 405. (5) Even in cases where the clerical error is in the process, and is such that the court would not have jurisdiction of the case, unless the process is amended, yet, if it appears that the adverse party could not, and, as in the case at bar, was not misled, and if it does not appear that he has suffered injury by the error, the court will allow the amendment to be made, thereby acquiring jurisdiction which it otherwise would not have had. Jones v. Cox, 7 Mo. 173; Moss v. Thompson, 17 Mo. 405; Jarbee v. Hillman, 19 Mo. 141; Jump v. McClurg, 35 Mo. 193; Stoner v. Insurance Co., 78 Mo. 655; Whitehill v. Keen, 79 Mo.App. 125; State v. Schnettler, 181 Mo. 173; State ex rel. v. Francis, 95 Mo. 44; Matthews v. Blossom, 15 Me. 400; Ordway v. Wilbur, 16 Me. 263; Judson v. Adams, 8 Cush. (Mass.) 556; Leetch v. Insurance Co., 4 Daly (N.Y.) 518; State v. Bryant, 5 Ind. 192; Pollock v. Hunt, 2 Cal. 193; Culver v. Whipple, 2 Greene (Iowa) 365; Jones v. Miller, 1 Swan (Tenn.) 319; Burton v. Insurance Co., 26 Ohio St. 467; Gribbon v. Freel, 93 N.Y. 93; Allen v. Allen, 14 How. Pr. (N.Y.) 248; Richmond v. Bendson, 86 Geo. 156; Covington v. Cathrous, 35 Geo. 156; McIniffe v. Wheelock, 1 Gray (Mass.) 600; Jackson v. McLean, 90 N.C. 64; Currier v. Bartlett, 122 Mass. 133 Bradbury v. Van Nostrand, 45 Barb. (N.Y.) 194; Ald. on Jud. Writs, 130, et seq.
Peers & Peers for respondent.
(1) A party appealing from a judgment of a justice of the peace shall serve a notice in writing stating the fact that an appeal has been taken from the judgment therein specified. R. S. 1899, sec. 4074. (2) To specify means to point out; to particularize; to designate by words, one thing for another. 26 Am. and Eng. Ency. Law (2 Ed.), page 136. (3) Appellant having specified a judgment in his notice he is bound by that notice, and if it is defective or inaccurate in a vital point, the notice must be disregarded, and treated as no notice at all. The notice of appeal is a thing apart from the actual notice which a party may have, that an appeal has been taken, and great particularity is required in such a notice. Wade on Notices, sec. 1211; Drug Co. v. Hill, 61 Mo.App. 680; Walker v. Carrew, 56 Mo.App. 320; Jordan v. Bowman, 28 Mo.App. 608; Hammond v. Kroff, 36 Mo.App. 118; Cooper v. N. Accident Co., 117 Mo.App. 423; Clay v. Turner, 135 Mo.App. 596.
On December 14, 1908, plaintiff recovered judgment by default before John T. Sanders, Esq., a justice of the peace of the Ninth District of the city of St. Louis, on an account in the sum of $ 500. Defendant was a non-resident of the city of St. Louis, residing in St. Louis county, and under section 4060, R. S. 1899, he was allowed twenty days in which to take an appeal. On the 2nd of January, 1909, he filed his affidavit and bond, the latter being approved, and the appeal granted to the circuit court of the city of St. Louis. On the 20th of January, 1909, the following notice of appeal was served on plaintiff by the sheriff of the city of St. Louis:
This notice, with the return of the sheriff, was filed in the office of the clerk of the circuit court January 28, 1909. Afterwards, on April 6th and at the April term of the circuit court of the city of St. Louis, which was the second term after the rendition of the judgment, the plaintiff moved the court to affirm the judgment of the justice on the ground that the appeal was not allowed on the same day on which the judgment was rendered and that no notice of appeal had been served on the plaintiff or any agent or attorney of the plaintiff as is required by law. The court, on May 7th, sustained the motion to affirm the judgment of the justice and rendered judgment in favor of plaintiff and against his sureties on the appeal bond. The defendant at the time excepted to the action of the court in sustaining the motion and in affirming the judgment and at the same time orally asked the court to permit him to amend the notice by striking out of the body of it the word "January" and inserting in lieu thereof the word "December." The court suggested that the defendant make a motion in writing, whereupon the defendant, on May 10th and during the same term, filed his motion to set aside the judgment of affirmance and reinstate the case and permit defendant to make the amendments aforesaid. The grounds set out in this motion are that it appears from the notice itself that the word "January," in the body of the notice, is a mere clerical error, January being written in place of December; that it appears that the notice "with the obvious clerical error aforesaid is sufficient to inform plaintiff from what judgment an appeal had been taken;" that it appears that the notice was served upon plaintiff and there is nothing to show that he was misled, deceived or injured by the error in the notice. The court overruled this motion, defendant excepting, defendant afterwards filing his bill of exceptions and perfecting his appeal to this court.
Section 4075, Revised Statutes 1899, provides that if the appellant fails to give the notice of the appeal when the notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof or at his instance it shall be continued as a matter of course until the succeeding term at the costs of the appellant, "but no appeal shall be dismissed for the want of such notice." Section 4076 provides that if the appellant fails to give the notice at least ten days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed or the appeal dismissed at the option of the appellee. There is no entry in the record before us of any transaction at the February term of the circuit court, the only entry prior to the April term being that on January 28, 1909, notice of appeal was filed.
In the case of Clay v. Turner, 135 Mo.App. 596, 116 S.W 480, this court held that a notice of appeal was fatally defective in which the date of the rendition of the judgment was stated to have been August 12th, when in point of fact the judgment was rendered August 7th. The learned counsel for appellant in the case now before us, urges that this decision is erroneous and that the attention of this court was not called to the case of Holschen Coal Co. v. Mo. P. Ry. Co., 48 Mo.App. 578, and Collier v. Langan & Taylor Storage & Moving Co., 128 Mo.App. 113, 106 S.W. 593, claiming that if the attention of this court had been called to those cases the decision in the Clay case would have been different. It is true that there is nothing appearing in the opinion in the Clay case to show that these last two mentioned cases were before the court. The Clay decision, however, is founded upon the decisions in the cases of Hammond v. Kroff, 36 Mo.App. 118, and Cooper v. Northern Acc. Co., 117 Mo.App. 423, 93 S.W. 871, this court stating that the principle of the decisions in these cases is that as the statute (section 4074, R. S. 1899) "requires the notice to state that an appeal has been taken from a judgment 'therein specified,' to mention a judgment of another...
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