United Iron Works Co. v. Sand Ridge Lead & Zinc Co.

• Decision Date: 28 May 1907
• Citation: 102 S.W. 1104,126 Mo. App. 238
• Court: Missouri Court of Appeals
• Parties: UNITED IRON WORKS CO. v. SAND RIDGE LEAD & ZINC CO.

102 S.W. 1104

126 Mo. A. 238

UNITED IRON WORKS CO. v. SAND RIDGE LEAD & ZINC CO.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

Rehearing Denied June 11, 1907.

1. APPEAL—MOTION FOR DISMISSAL—TIME FOR MAKING.

Under Rev. St. 1899, § 808 [Ann. St. 1906, p. 775], providing that no appeal shall be allowed unless appellant shall file his affidavit, etc., the court must consider a motion to dismiss an appeal for want of jurisdiction, because of the insufficiency of the affidavit for the appeal, though the motion is not made until after the submission by both parties on briefs; jurisdiction not being acquired by consent.

2. SAME—AFFIDAVIT FOR APPEAL—REQUISITES —STATUTES.

An affidavit for appeal from a judgment against a corporation made by its president, which recites that he is the president, and that the appeal prayed for by him is not made for vexation and delay, but because he considers himself aggrieved by the judgment, is insufficient to confer jurisdiction on the appellate court within Rev. St. 1899, § 808 [Ann. St. 1906, p. 775], providing that no appeal shall be allowed unless appellant or his agent shall file his affidavit, etc.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by the United Iron Works Company against the Sand Ridge Lead & Zinc Company. From a judgment for plaintiff, defendant appeals. Dismissed.

Watson & Jones, for appellant. E. P. Mann, for respondent.

BLAND, P. J.

After the cause was submitted by both parties on briefs, respondent filed its motion to dismiss the appeal, for the reason the affidavit for the appeal is insufficient to confer jurisdiction upon this court to pass upon the merits of the cause. Appellant, in opposition to the motion, contends that it should have been filed and presented before the briefs were filed and the cause submitted, and that the court should not now entertain the motion.

The proceedings in a lawsuit advance step by step to a final end. The steps should be regular and according to some system, and when a party to the suit is entitled to file a motion or particular pleading, but instead of doing so takes a step or files another pleading, in advance of the order of the proceedings, when the motion should have been filed, he will generally be deemed to have waived the defect in procedure or pleading to which he should have called the attention of the court by motion; but when the motion raises the question of the jurisdiction of the court and its power to proceed, the court is bound to consider the motion, irrespective of the stage in the proceedings when the motion is filed, for the reason the question of jurisdiction of the subject-matter cannot be waived or acquired by consent of parties. In State ex rel. v. Woodson, 128 Mo., loc. cit. 514, 515, 31 S. W. 105, 108, it is said: "The right of appeal in civil actions was unknown to the common law. It is regulated wholly by statute. 3 Black. Com. 402. It had its origin in the civil law. 1 Am. & Eng. Encyclopedia of Law, 616. Being statutory in its origin, it is essential to the exercise of the right that the statute be strictly pursued." In Railroad v. Powell, 104 Mo....