Ranck v. Merrill
| Decision Date | 16 June 1913 |
| Citation | 158 S.W. 425,172 Mo.App. 489 |
| Parties | C. H. RANCK, Respondent, v. PEARL D. MERRILL, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
Judgment affirmed.
Sebree Conrad & Wendorff for appellant.
(1) Error was committed when defendant's appeal from justice court was dismissed. Was the appeal from justice court allowed? The court committed error in holding that it was not. Sec. 7912, R. S. 1909; sec. 7579, R. S. 1909; Drake v. Gorrell, 127 Mo.App. 636; Bader v. Jones, 119 Mo.App. 685; Lewellyn v. Lewellyn, 87 Mo.App. 9. (2) Amended affidavit and recognizance should have been received and the court committed error in not receiving them. Secs. 7912, 7568, 7569, 7570, 7580, 7720, 7721, R. S. 1909; Kellog v. Linger, 60 Mo.App. 571; Anslem v Groby, 16 Mo.App. 421; Brewing Co. v. Talbott, 135 Mo 170; Secs. 7581, 7579, 7582, 7583, 7584, R. S. 1909.
Evans, Williamson & Estill for respondent.
(1) The attempt to take an appeal from the judgment of the justice in this case was a nullity and conferred no jurisdiction on the circuit court, and, hence, this court has no jurisdiction. R. S. 1909, secs. 7568, 7570, 7572, 7573, 7574, 7580; Clapper v. Bradshaw, 163 Mo.App. 587; R. S. 1889, sec. 6340; Moulder & Simpson v. Anderson, 63 Mo.App. 37; Barhydt Co. v. Alexander & Co., 59 Mo.App. 188. (2) The amended affidavit and recognizance were properly rejected by the circuit court. State ex rel. v. Allen, 45 Mo.App. 565; R. S. 1909, sec. 7912; Morriss v. Horrell, 35 Mo. 467; Kellogg v. Linger, 60 Mo.App. 571; R. S. 1909, 7580; Clapper v. Bradshaw, 163 Mo.App. 590.
This suit was brought in a justice court under the Landlord and Tenant Act, for the possession of certain hotel property in Kansas City, Missouri. The justice rendered judgment for plaintiff on February 21, 1912.
On February 26, 1912, defendant filed a bond for appeal conditioned as required in ordinary cases, but not as required by section 7912, Revised Statute 1909, of the Landlord and Tenant Act. There was no affidavit filed. A blank form of affidavit accompanied the bond, but as no oath was taken or administered by any one, this blank form was not an affidavit under the definition given in Barhydt v. Alexander, 59 Mo.App. 188, or the one given either by the court, or by SHERWOOD, J., in his dissenting opinion, in Hargadine v. Van Horn, 72 Mo. 370, 371.
Neither was there any order made by the justice allowing the appeal, the last entry by the justice in his docket, and the only entry in reference to appeal, being as follows: "February 26, 1912, defendant files bond in appeal."
On March 20, 1912, after the ten days allowed by the statute for perfecting the appeal had expired, the papers in the case and a transcript of the justice's record, still showing no order allowing an appeal, was filed in the office of the clerk of the circuit court of Jackson county, Missouri, and the cause was docketed in said court as having been appealed from the justice court.
On April 3, 1912, respondent filed a motion to dismiss on the ground, among others, that no appeal had been taken or allowed, and the circuit court, therefore, had no jurisdiction. Before this motion was passed on, the defendant filed an application for leave to amend the transcript. Plaintiff objected to any amendment of the transcript not based upon anything shown in the justice's record. The trial court proceeded to hear evidence on the application for leave to amend. The justice was sworn and took the stand and his docket was introduced in evidence. There was nothing in it to show any affidavit filed, nor order allowing appeal, nor any application for appeal on the part of defendant in any way except the entry, noted above, to-wit: "February 26, 1912, defendant files bond in appeal." The justice testified that the docket showed all the proceedings that were had in the case; that there was no other record showing anything in relation to an appeal except the approval of the bond indorsed by him on the back thereof. He testified that this bond was handed to him, not in his justice's office, but at a place outside of his justice district; that it was handed to him by defendant, and he approved it but handed it back to her with directions to take it to her attorneys and have them mail it back to the justice together with an affidavit for appeal sworn to before a notary public; that he did not swear the defendant, nor was any request made of him to do so. When asked if he could say outside of his record that an appeal had been allowed by him, he said, "I can say I think I did; but, that is a question for the court." This answer was objected to by plaintiff and a motion was made to strike it out. The court did not formally sustain the motion but by his remarks indicated that this testimony could not be received. The case was then laid over until the next day, when it was again taken up. In the meantime the justice amended his record by inserting, in place of the entry of February 26, 1912, above quoted, the following: It was admitted that the justice made this amendment the day before, to-wit, on April 5, 1912. The amendment was objected to and the court ruled that before it could pass on the objection it must ascertain whether there was any record upon which the justice based his nunc pro tunc entry or amendment. It was thereupon admitted by defendant that the amendment was made by the justice, not upon any record had by him, but upon the facts as he remembered them. Thereupon the court sustained the objection and excluded the amendment, and thus overruled the motion to amend the transcript. Thereupon the defendant offered to file, and presented to the court for filing, an affidavit for appeal and also an appeal bond conditioned as required by the Landlord and Tenant Act. The objections to these were sustained. And thereupon the motion to dismiss the alleged appeal was submitted and sustained. Defendant then filed a motion to set aside the order dismissing the case which was also overruled. From the court's action on this motion the defendant appealed.
Appellant has raised a number of questions for consideration, among them, the contention that appeals under the Landlord and Tenant Act are governed by the statutes covering appeals in other civil cases (Sec. 7912, R. S. Mo. 1909); that, in appeals in those cases, the statute forbids a dismissal of the case from the circuit court for want of an affidavit or bond, or for insufficiency or defects therein, (Sec. 7580...
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