Sehested v. Kansas City

• Decision Date: 09 June 1902
• Citation: 68 S.W. 1068
• Parties: SEHESTED et al. v. KANSAS CITY.
• Court: Missouri Court of Appeals

68 S.W. 1068

SEHESTED et al. v. KANSAS CITY.

Court of Appeals at Kansas City, Missouri.

June 9, 1902.

APPEAL — AFFIDAVIT OF GOOD FAITH — NECESSITY — ORDER ALLOWING APPEAL — APPELLATE JURISDICTION.

1. An appeal from a circuit court is of no avail unless the affidavit of good faith required by Rev. St. § 808, is filed.

2. Where an order granting an appeal merely recites that "the court grants and allows an appeal as prayed for," and does not designate that the appeal is allowed to the court of appeals, the court of appeals acquires no jurisdiction.

3. Where defendant endeavored to appeal, but the order of appeal was insufficient to give the court of appeals jurisdiction, filing of the record in such court by defendant did not give jurisdiction.

Appeal from circuit court, Jackson county; Edward P. Gates, Judge.

Action by Charles Sehested and others against Kansas City. From a judgment for plaintiffs, defendant appeals. Dismissed.

Clarence S. Palmer and Fred H. Wood, for appellant. R. J. Ingraham, Chas. B. Adams, and Wash Adams, for respondents.

PER CURIAM.

This is an action which was brought against the defendant on a contract, and in which the plaintiffs had judgment, and the defendant appealed. The merits of the case cannot be considered by us, for the reason that the affidavit required for an appeal by statute (section 808, Rev. St.) nowhere appears in the record before us. Clelland v. Shaw, 51 Mo. 440; State v. Wooldridge, 83 Mo. 193; Same v. Roscoe, 93 Mo. 146, 6 S. W. 117; Lengle v. Smith, 48 Mo. 276. And further, the order granting the appeal was to the effect that "defendant files affidavit for an appeal from the judgment and decision of the court in this cause, and upon consideration thereof the court grants and allows defendant an appeal in this cause as prayed for." This was insufficient to give this court jurisdiction of the appeal. In order to give it jurisdiction of an appeal, such an appeal must be prayed for by the party desiring to appeal, and must be allowed by the court from which the appeal was taken. It may be that the affidavit which was filed by the defendant in the trial court did not designate the court where the appeal was asked to be sent, and, if so, it was the duty of such trial court to have designated the proper court in its order. There was no appeal granted to this court. The filing of the record in this court was the act of the defendant, and the right to bring the case to this court by appeal cannot be...