United States Fidelity & Guaranty Co. of Baltimore, Md., v. Foskett-Kessner Feed Co.

• Decision Date: 17 March 1903
• Citation: 73 S.W. 364,100 Mo. App. 724
• Court: Missouri Court of Appeals
• Parties: UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. FOSKETT-KESSNER FEED CO. et al.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 364

100 Mo. App. 724.

UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. FOSKETT-KESSNER FEED CO. et al.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

JUSTICE OF THE PEACE — JURISDICTION — AMOUNT—AMENDMENT—APPEAL— PRESUMPTIONS.

1. Where, on a motion for a rule on a justice to perfect his transcript on an appeal, the clerk of the justice's court made an affidavit that he had inadvertently omitted from the transcript a line from the justice's docket which showed that the case was continued from the 9th of November until the 14th, and that the cause was dismissed on the latter day, in which case the appeal was in time, and the court thereupon overruled the motion, it will be presumed that the court thereby found the facts as stated in the affidavit, and that the appeal was therefore taken in time.

2. Where replevin to recover a horse of the alleged value of $500, and $200 for wrongful detention, was dismissed by the justice on the ground that the damages exceeded his jurisdiction, from which an appeal was taken, and a paper attached to the transcript purported to be an amendment omitting the item of damages, but such paper contained nothing to show that it was filed, it would be presumed that the amendment was not allowed by the justice.

3. Rev. St. 1899, § 4079, provides that, on appeal from justices of the peace, the statement of a plaintiff's cause of action, filed before the justice, may be amended "to supply any deficiency or omission therein when by such amendment substantial justice will be promoted." Held that, where an action was brought before a justice for a sum exceeding the justice's jurisdiction, such section did not authorize an amendment reducing the damages for the purpose of conferring jurisdiction.

Goode, J., dissenting.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by the United States Fidelity & Guaranty Company of Baltimore, Md., against the Foskett-Kessner Feed Company and others. From a justice's judgment dismissing the action for want of jurisdiction, affirmed by the circuit court, plaintiff appeals. Affirmed.

E. M. Grossman, for appellant. Paxson & Clark, for respondents.

BLAND, P. J.

The suit was begun before a justice of the peace in the city of St. Louis to replevy one horse, of the alleged value of $500, and $200 damages for its wrongful detention. On November 9, 1900, the justice dismissed the suit for the reason that the damages sued for exceeded his jurisdiction. On November 20, 1900, plaintiff filed its affidavit and bond for an appeal to the circuit court. Its bond was approved and the appeal was granted by the justice. In the transscript sent up by the justice is an amended petition, in which the claim for damages is omitted, but there are no file marks on the paper; nor is there any entry in the justice's docket showing that permission was given to plaintiff to amend the petition, or that an amended petition was filed. After the cause reached the circuit court, plaintiff filed an amended petition omitting the item of damages. Defendants moved to dismiss the cause for want of jurisdiction in the circuit court over the subject-matter of the suit. This motion was overruled. The defendants then filed separate answers. After filing answers, defendants filed what they call a supplementary motion to dismiss the suit for want of jurisdiction in the circuit court over the subject-matter of the action. The court sustained this motion and dismissed the cause at plaintiff's costs. A timely motion to set aside the order dismissing the cause and for new trial proving of no avail, plaintiff appealed to this court.

There is a question as to whether or not the appeal was taken in time. The transcript shows that the cause was dismissed by the justice on the 9th of November. The clerk of the justice's court made an affidavit to the effect that he made out the transcript, and in so doing he inadvertently omitted one line from the justice's docket, which showed that the case was continued from the 9th until the 14th of November, and that the cause was dismissed on the 14th. If so, then the appeal was taken within 10 days from the rendition of the judgment. The plaintiff filed this affidavit in support of a motion for a rule on the justice to perfect his transcript, which motion the court overruled, on the ground, as we assume, that the court, as it had a right to do, found from the facts before it that the appeal was taken in time. Hansford v. Hansford (St. L.) 34 Mo. App., loc. cit. 270; In re Webster (St. L.) 36 Mo....