Thomas v. Schapeler

• Decision Date: 06 April 1936
• Docket Number: No. 18387.,18387.
• Citation: 92 S.W.2d 982
• Parties: THOMAS v. SCHAPELER.
• Court: Missouri Court of Appeals

92 S.W.2d 982

THOMAS v. SCHAPELER.

No. 18387.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court, Bates County; W. L. P. Burney, Judge.

"Not to be published in State Reports."

Action by W. G. Thomas against Hermann Schapeler. From an adverse judgment, the defendant appeals.

Affirmed.

Silvers & Sheppard, of Butler, for appellant.

F. W. Long, of Rich Hill, for respondent.

BLAND, Judge.

This is an action on a contract for the building of a bridge. The suit arose in the justice court where defendant prevailed. Plaintiff appealed to the circuit court. In the latter court the trial resulted in a verdict and judgment in favor of plaintiff in the sum of $37.50. Defendant has appealed to this court.

The facts show that defendant desired to have a bridge replaced upon a public highway which ran along the side of his farm; that he spoke to the plaintiff about doing the work; that the bridge was to cost $150.00; that the two intervened the county court which agreed to pay $75.00 toward the building of the bridge if the balance of the money could be raised elsewhere.

Thereupon, the parties presented the matter to the township boards of Prairie and Pleasant Gap Townships. The bridge was to be built on or near the line between the two townships. The Prairie Township Board agreed to pay $37.50 toward the building of the bridge but the Pleasant Gap Township Board refused to pay any part of the expense thereof because the bridge was to be constructed about 10 feet over the township line in Prairie Township.

Thereupon, defendant told plaintiff, who was to do the work, that if Pleasant Gap Township would not pay its part, or $37.50, defendant would pay it. Thereupon, the bridge was constructed by plaintiff, defendant helping him, charging him $10.00 for his services. When the bridge was completed the county paid plaintiff $75.00, Prairie Township paid him $37.50 but both Pleasant Gap Township and defendant refused to pay the balance, or $37.50.

Thereafter, plaintiff brought this suit in the justice court on January 11, 1932, by filing the following statement with the justice:

                                            "Butler Mo
                                            "Oct 6, 1931
                

"Hermon Scapler Dr to W. G. Thomas for bldgr bridge on line of Plosont Got and Praie T. P. Amont $37.50"

It is claimed by the defendant that the statement is insufficient. It is held that a statement is sufficient if it apprises the defendant of the nature of the claim against him and is full enough to bar another action upon the same demand. While the statement contains some typographical errors, we think that it is sufficient. The worst that can be said of it is that it is defective. The rule in such a case is that the proper method of attacking the statement is by a motion to make more definite rather than by motion to dismiss. Whitewater Merc. Co. v. Devore, 130 Mo.App. 339, 109 S.W. 808; Derossett v. Marsh, 224 Mo.App. 1095, 35 S.W.(2d) 62; Rundelman v. Boiler Works, 178 Mo.App. 642, 161 S.W. 609.

Defendant, in support of his contention, cites the case of Rechnitzer v. Vogelsang, 117 Mo.App. 148, 93 S.W. 326 and like cases. The Rechnitzer Case is distinguished in Rundelman v. Boiler Works, supra, 178 Mo.App. 642, loc.cit. 647, 650, 161 S.W. 609, and also in Whitewater Merc. Co. v. Devore, supra.

While there is a slight discrepancy between the name of the defendant, as contained in the statement, and his real name, it is well settled that a misnomer of a party must be objected to at the trial, otherwise, it is waived. Wegner v. Gray, 145 Mo.App. 453, 122 S.W. 755; Rohrbough v. Reed Bros., 57 Mo. 292. No proper objection to the statement was made in the trial court.

Defendant further insists that the record does not disclose that any appeal was taken from the justice in accordance with the statute; that there is nothing in the record warranting the court in believing that any affidavit of appeal or bond was filed in the justice court; that the transcript of the judgment is silent as to why the appeal was taken. Consequently, it is insisted that the circuit court acquired no jurisdiction.

The transcript was duly filed by the justice in the circuit court and recites: "The plaintiff made affidavit for appeal and made bond for the same, both approved and appeal granted to the circuit court," but no affidavit of appeal or bond was filed with the transcript. We find a paper headed "Motion to Dismiss" which was filed in the circuit court by the defendant. Among the grounds set forth in said motion is the following: "No affidavit of appeal was made and filed or certified to this court. No bond was given or certified to this court." As before stated, the transcript shows that the affidavit and bond were filed in the justice court. Whether the transcript is to be held to recite the true facts about the matter need not be determined here. The truth could have well been determined by a rule upon the justice. Upon which party the duty rested to initiate such a proceeding in the circuit court in this matter, we need not say, for the reason that the point is not properly preserved. The motion to dismiss is contained in the record proper and not in the bill of exceptions. Therefore, it cannot be considered by us. National Banking & Ins. Co. v. Knaup, 55 Mo. 154; Allen v. Quercus Lumber Co. (Mo.App.) 190 S.W. 86, 88.

It was not necessary that either the affidavit or the bond be filed in the circuit court in order to give that court jurisdiction over the cause. "Where the justice allows the appeal and lodges the papers in the circuit court, that court acquires...