State v. Musick

• Decision Date: 06 June 1910
• Citation: 145 Mo. App. 33,130 S.W. 398
• Parties: STATE ex rel. O'MALLEY v. MUSICK et al.
• Court: Missouri Court of Appeals

130 S.W. 398

145 Mo. App. 33

STATE ex rel. O'MALLEY v. MUSICK et al.

Springfield Court of Appeals. Missouri.

June 6, 1910.

Rehearing Denied July 19, 1910.

1. APPEAL AND ERROR (§ 798)—MOTION TO DISMISS—NOTICE—TIME FOR FILING.

Under rule 25 (122 S. W. viii) of the Court of Appeals, providing that a party desiring to move to dismiss or affirm shall notify the adverse party, or his attorney, in writing, of his motion at least five days before the same is filed, and the court will require satisfactory proof that proper notice has been given, where notices of motions to dismiss an appeal and to affirm the judgment was given on May 7th, and the motions filed May 10th, the Court of Appeals was not obliged to consider the motions.

2. APPEAL AND ERROR (§ 797)—MOTION TO DISMISS—AFFIDAVIT—INSUFFICIENCY— TIME OF FILING.

A motion to dismiss based on the insufficiency of the affidavit for appeal must be filed before the case is submitted on its merits, and after submission the appellate court will not go behind the order granting the appeal to determine whether the affidavit is sufficient or whether any affidavit whatever was filed.

3. APPEAL AND ERROR (§ 937)—AFFIDAVIT— SUFFICIENCY—PRESUMPTIONS.

Where it appears from the short form transcript in the clerk's office that the trial court, acting under Rev. St. 1899, § 808 (Ann. St. 1906, p. 775), which requires appellant or his agent to file his affidavit that the appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment of the court, deemed the affidavit sufficient and granted the appeal at the same term of court at which the motion for new trial was overruled, and no counter abstract having been filed showing an insufficient affidavit, the Court of Appeals will presume that the affidavit was not only filed, but was in substantial statutory form.

4. NOTARIES (§ 11)—ACTION ON NOTARY'S BOND—LIMITATIONS.

Rev. St. 1899, § 8836 (Ann. St. 1906, p. 4108), provides that no suit shall be instituted against a notary public or the sureties on his bond more than three years after the cause of action accrued. Section 4292 (page 2360), provides that the provisions of the chapter containing the general statute of limitations shall not extend to actions which are otherwise limited by any statute. Held, that under section 4292, the limitations as to notaries public being a special limitation of three years, the general statute is inapplicable; hence, where a notary has been out of office three years, no one could sue on the bond.

5. LIMITATION OF ACTIONS (§ 73)—ACTION AGAINST MARRIED WOMEN.

Where a special statute of limitations contains no saving clause in favor of persons under disability of marriage, it runs as well against married women as other persons, and the courts cannot write into the statute a disability which the law has not provided for.

6. COMMON LAW (§ 12)—ADOPTION—LIMITATION OF ACTIONS.

Under Rev. St. 1899, § 4151 (Ann. St. 1906, p. 2250), providing that the common law and statutes of England made prior to the fourth year of the reign of James the First, which are not repugnant to the federal or state Constitutions or the statute law, shall be the law of the state, etc., where no provision of the general statute of limitations or of any other statute expressly provides when an action on a notary's bond accrues, recourse must be had to the common law.

7. COMMON LAW (§ 1)—SOURCE.

The common law imports a system of unwritten law, not evidenced by statute, but by tradition, and the opinions and judgments of the sages of the law.

8. LIMITATION OF ACTIONS (§ 100)—FRAUD— CONCEALMENT BY SILENCE.

The mere fact that one seeking relief on the ground of fraud did not discover the fraud within three years before the commencement of the suit does not bring the case within the exception to the running of the statute of limitations; but there must have been some act done by defendant to lull plaintiff into nonaction or prevent her from discovering the fraud, and concealment of the facts by mere silence is not enough.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by the State, on the relation of Margaret O'Malley, against John U. Musick and others. Judgment for relator, and defendants appeal. Reversed.

A preliminary question must be disposed of before we undertake a consideration of the errors assigned.

This case was argued and submitted on the merits by counsel for both parties on May 6, 1910, in this court; no suggestion being made during the argument of any alleged defects in appellants' abstract. On the 10th day of May, 1910, after the attorneys had returned to St. Louis, respondent filed in this court a motion to dismiss the appeal and a motion to affirm the judgment, supported by a printed brief on the questions presented. Copies of these motions and this brief were served on appellants' attorneys in the city of St. Louis on May 7, 1910, and a form of service sworn to before a notary public is attached to each motion.

Our rule 25 (122 S. W. viii) provides: "A party in any cause, desiring to present a motion either to dismiss an appeal or writ of error, or to affirm the judgment of the trial court, shall notify the adverse party, or his attorney of record, in writing, of his intention to file said motion at least five days before the same is filed, and shall accompany said notice with a copy of said motion, and in all cases the court will require satisfactory proof that proper notice has been given."

As the notice in this case was given on May 7, 1910, and the motion filed on May 10, 1910, it is clear that this rule has not been complied with, and that this court is not obliged to consider the motions.

The motion to dismiss alleges: (1) That no affidavit for appeal was ever filed; (2) that the record does not show that an affidavit for an appeal was filed; and (3) that no appeal was ever allowed.

The Supreme Court has held that the objection to the sufficiency of an affidavit for appeal must be taken by motion to dismiss before the case is submitted on its merits; that after submission the court will not go behind the order granting the appeal to determine whether the affidavit is sufficient or whether any affidavit whatever was filed. St. Louis Bridge & Construction Co. v. M., C. & N. R. Co., 72 Mo. 664. This ruling was followed by the Supreme Court in the case of Cooley v. K. C., P. & G. R. Co., 149 Mo. 487, 51 S. W. 101.

In the case of State ex rel. Title Guaranty & Trust Co. v. Broaddus et al., 210 Mo. 1, 108 S. W. 544, Burgess, J., after reviewing many cases (including the case of United Iron Works Co. v. Sand Ridge Lead & Zinc Co., 126 Mo. App. 238, 102 S. W. 1104), says: "The Courts of Appeals have seemingly been disposed to construe section 808, supra, according to its strict letter, rather than its spirit and intention, which latter method of construction has been followed by the Supreme Court." That was a proceeding by mandamus to require the judges of the Kansas City Court of Appeals to set aside its order dismissing an appeal because of an alleged defective affidavit for appeal.

This court will follow the construction of section 808 laid down by the Supreme Court and will follow the Supreme Court in its ruling that a motion to dismiss based on the insufficiency of the affidavit for appeal must be filed before the case is submitted on its merits, and that, after submission, the appellate court will not go behind the order granting the appeal to determine whether the affidavit is sufficient or whether any affidavit whatever was filed.

This question is considered fully in the opinion in the case of State ex rel. Brown v. Broaddus, 216 Mo. 336, 115 S. W. 1018. The appeal in that case (as in this) was taken on the short form to the Kansas City Court of Appeals, where a judgment for plaintiff was reversed. Plaintiff thereupon applied to the Supreme Court for a writ of certiorari to bring up the record in that case to the end that the proceedings in the Kansas City Court of Appeals might be quashed. The writ was issued. On examination by the Supreme Court, it appeared that the abstract did not contain the affidavit for appeal of a statement of its contents, and relator contended that the Kansas City Court of Appeals acquired no jurisdiction of the cause. The abstract in that case did contain a recital that "said defendant filed its application and affidavit for an appeal from said judgment, which application * * * was allowed and said appeal granted." (The similarity of this language to that appearing in the abstract in the present case is noticeable.) The Supreme Court held that this language sufficiently showed that an affidavit was filed. The court, speaking through Valliant, C. J., said: "It is conceded that in all other respects the record is sufficient, and, there being no counter abstract filed, we hold that the statement in the abstract to the effect that the record proper of the circuit court shows that during the same term in which the motion for new trial was overruled the defendant filed an affidavit for an appeal, and that on that affidavit the court made the order allowing the appeal to the Kansas City Court of Appeals, is sufficient to confer appellate jurisdiction of the cause on that court, notwithstanding neither the affidavit for the appeal nor a statement of its contents appears in the abstract."

The Supreme Court in that case, during the course of the opinion, referred to the short transcript filed by the appellant with the clerk of the Kansas City Court of Appeals, which contained a certified copy of the record entry of the judgment and the order granting the appeal, wherein it was recited that an affidavit was duly filed, "and, the same being by the court examined and deemed sufficient, an appeal in this cause is granted to the Kansas City Court of Appeals." The Supreme Court in this connection say: "The circuit court is a court of...