Waller v. Robertson Transfer Co.
| Decision Date | 26 May 1919 |
| Docket Number | No. 13231.,13231. |
| Citation | 214 S.W. 267 |
| Parties | WALLER v. ROBERTSON TRANSFER CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.
"Not to be officially published."
Action by Marvin Waller against the Robertson Transfer Company. Judgment for plaintiff, and defendant appeals. On motion to dismiss appeal. Dismissed.
John C. Stearns, of Kansas City, for appellant.
Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.
Plaintiff sought damages on account of being injured in a runaway of defendant's team which plaintiff was employed to drive. The charge is that the team was dangerous, fractious, and unruly, and that the defendant negligently failed to furnish plaintiff with reasonably safe bits and harness wherewith to control said team, but furnished him with insufficient and defective harness and bits which were not reasonably safe, and negligently assured plaintiff that said team was entirely safe and that the bits and harness were safe for him to use until others were supplied. A judgment was obtained, from which an appeal was attempted to be taken. And the first thing to confront us is respondent's motion to dismiss the appeal because of the insufficiency of the affidavit.
The right of appeal is purely statutory, and, being so, the statutory conditions on which it is allowed must be at least substantially complied with, else the appellate court acquires no jurisdiction. State ex rel. v. Woodson, 128 Mo. 497, 515, 31 S. W. 105; Arkansas, etc., R. Co. v. Powell, 104 Mo. App. 362, 80 S. W. 336; O'Bannon v. St. Louis, etc., R. Co., 106 Mo. App. 316, 320, 80 S. W. 321.
Section 2040, R. S. 1909, prescribing the conditions on which an appeal may be allowed, provides that no appeal shall be allowed unless the appellant or his agent shall file in, the court his affidavit stating that such appeal is not made for vexation or delay, but "because the affiant believes that the appellant is aggrieved by the judgment or decision of the court." The affidavit for appeal in the case at bar nowhere says what the affiant believes about the matter, nor is it possible for the affiant to know what the defendant corporation believes on that subject. The affidavit does not deviate from the statute through a mere clerical error or inadvertent use of certain words when others were intended, but shows on its face that the deviation was substantial and that the words used were chosen and intended to...
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Buck v. Radcliff Motor Co.
... ... inferred because of a violation of the state statute with ... respect to the transfer of automobiles. (2) The court erred ... in giving plaintiff's Instruction Number One because said ... Revised ... Statutes of Missouri, 1929, sec. 1020; Waller v ... Robertson Transfer Company (Mo. App.), 214 S.W. 267. (2) ... There was no assignment, ... ...
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Buck v. Radcliff Motor Co.
...for failure of affidavit for appeal to comply with the statute. Revised Statutes of Missouri, 1929, sec. 1020; Waller v. Robertson Transfer Company (Mo. App.), 214 S.W. 267. (2) There was no assignment, either in law or in fact, of the title to said automobile to G.T. Hendrickson by appella......
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Griffith v. Walesby
...complied with," that is sufficient to give the appellate court jurisdiction. The reason the affidavit, in Waller v. Robertson Transfer Co. (Mo.App.) 214 S.W. 267, was held insufficient was not because of a technical ruling, but because the affidavit did not state what the affiant believed a......