Widman v. American Cent. Ins. Co.

• Decision Date: 28 November 1905
• Citation: 91 S.W. 1003,115 Mo. App. 342
• Parties: WIDMAN v. AMERICAN CENT. INS. CO.
• Court: Missouri Court of Appeals

91 S.W. 1003

115 Mo. App. 342

WIDMAN v. AMERICAN CENT. INS. CO.

St. Louis Court of Appeals. Missouri.

November 28, 1905.

Rehearing Denied December 12, 1905.

1. APPEAL—AFFIRMANCE.

Where the motions for new trial and in arrest of judgment are filed out of time, the judgment must be affirmed, unless there is error in the record.

2. SAME—MOTIONS FOR NEW TRIAL—TIME OF FILING.

Where the sureties on appeal bond assigned as ground for new trial the rendering of summary judgment against them in violation of Const. art. 6, § 22, and their motion was filed after the time allowed by statute, the question cannot be considered, as the matter was no part of the record proper.

3. JUSTICES OF THE PEACE—PLEADINGS—FILING INSTRUMENTS.

In an action before a justice of the peace on an insurance policy, failure to file the policy is excused by an averment that it was in defendant's possession.

4. SAME—JUDGMENT—VALIDITY.

Under Rev. St. 1899, § 3853, providing that no suit before a justice of the peace shall be dismissed for failure to file an instrument which is the foundation of the action, but the instrument may be filed before the jury is sworn or the trial begun, the failure to file such an instrument does not so wholly deprive the justice of jurisdiction that the judgment will be void.

5. SAME—STATEMENT OF CLAIM.

In an action before a justice of the peace, a statement claiming a balance due under a policy, giving the number of the policy, its date of issuance, and the date when the fire occurred, is sufficient after verdict.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Otto Widman against the American Central Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Barclay & Fountleroy, for appellant. Charles S. Reber, for respondent.

GOODE, J.

This case was instituted before a justice of the peace on the following statement:

"Otto Widman, Plaintiff, v. American Central Insurance Company, Defendant.

"Before James J. Spaulding, Esq., Justice of the Peace for the Fifth District, City of St. Louis.

                "American Central Insurance Company to
                           Otto Widman, Dr
                To balance due under policy 1161408 issued
                 by defendant on July 15, 1901, on plaintiff's
                 dwelling house at Webster Groves, Missouri
                 on account of the total destruction
                 of said building by fire on July 30, 1902....    $166 67
                Amount due on account of defendant's wrongful
                 cancellation of its insurance on plaintiff's
                 stable, situated at said place..............        5 00
                                                                  _______
                  Total due..................................     $171 67
                

"The policy on said dwelling is not produced and filed with this statement, because it is now in defendant's possession.

"Charles S. Reber, Attorney for Plaintiff."

The appearance of the defendant was entered and service of summons waived. Judgment went in favor of the plaintiff before the justice, and defendant appealed to the circuit court, where the case was tried anew. An appeal bond was given to carry the case from the justice to the circuit court. George T. Cram and David Rorick were sureties on the bond. There was a trial in the circuit court resulting in a judgment, December 14, 1904, in favor of the plaintiff for $186.67. The judgment went against the defendant, the American Central Insurance Company, and its two sureties on the appeal bond. The defendant appealed to this court, and so did the sureties. The insurance company filed motions for new trial and in arrest December 20, 1904, or six days after the rendition of judgment. The sureties Cram and Rorick filed motions to set aside the judgment as to them January 5, 1905. On January 6, 1905, the defendant filed two motions for new trial and also two motions in arrest of judgment. Defendant, likewise, on January 7, 1905, filed a motion to set aside the judgment for irregularity. These motions were overruled January 18, 1905. The appeal was allowed January 20th; that being one of the days of the regular December term of the circuit court.

1. The state of the record precludes an examination of the exceptions taken below. The motions for new trial and in arrest having been filed out of time, the judgment must be affirmed, unless there is error in the record proper. In their motion for new trial the sureties on the appeal bond assign, as ground for setting aside the judgment against them, that rendering judgment summarily against the sureties on an appeal bond violates article 6, § 22, of the Constitution of the state of Missouri; that any statute authorizing such a judgment is in conflict with said constitutional provision. This point, as far as we are advised, was raised only in the motion for a new trial. The motion was overruled, and an exception saved. But this matter is no part of the record proper, and cannot be noticed because the motion was filed too late. Of course, if the constitutional point had been raised properly, we would have no jurisdiction. As it was asserted first in a motion filed after the time allowed by statute, in our opinion it is not in the case.

2. It is contended that the justice's court was without...