Bader v. Jones

Missouri Court of Appeals

Bader v. Jones

96 S.W. 305, 119 Mo. App. 685, 1906 Mo. App. LEXIS 271

CourtMissouri Court of Appeals

DecidedJune 5, 1906

StatusPublished

Cited by2 cases

This text of 96 S.W. 305 (Bader v. Jones) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bader v. Jones, 96 S.W. 305, 119 Mo. App. 685, 1906 Mo. App. LEXIS 271 (Mo. Ct. App. 1906).

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Opinions

BLAND, P. J.

(after stating the facts). — In respect to appeals from justices’ courts, the statute (section 4062, E. S. 1899) provides:

“No appeal shall be allowed unless the party applying therefor, or some person for him, will make affidavit that the application for an appeal is not made for vexation or delay, but because he believes the appellant is injured by the judgment of the justice, and stating whether such appeal is from the merits or from an order or judgment taxing costs.”

In Van Scoyce v. Wolfe, 73 Mo. App. 1. c. 432, the Kansas City Court of Appeals, in respect to a defective affidavit for an appeal, said: “While this defect did not altogether deprive the circuit court of jurisdiction, yet when attention was called to the insufficiency of the affidavit by motion of the opposite party, the defendant was bound to amend before the motion was determined or his appeal should have been dismissed. It has been several times so ruled by this court. [Spencer v. Beasley, 48 Mo. App. 97; Welsh v. Railway, 55 Mo. App. 599; Greischar v. Alexander, 56 Mo. App. 56.]

In this case the defendant, who was the appellant in the circuit court, did not offer to amend his affidavit. His appeal then should have been dismissed.

In Whitehead v. Cole & Rodgers, 49 Mo. App. 1. c. 429, the same court said:

[689]*689“In every case of an appeal from one court to another it is a fundamental principle that it is essential to the jurisdiction of the appellate court that the appeal was taken in the manner prescribed by law, and that where it is not so-taken, the appellate court has no jurisdiction to proceed to an examination on the merits.”

This court, in Green v. Gastello, 35 Mo. App. 127, made a like ruling on an appeal from the judgment of a probate court; and in Hyatte v. Wheeler, 101 Mo. App. 1. c. 359, 73 S. W. 1100, through Reyburn, J., in writing the opinion, said: “A literal compliance with the requirements of the statute is the only mode by which the appellate tribunal can acquire jurisdiction of the subject-matter of the former trial. The decision of the inferior court is final, unless reopened according to law. [Robinson v. Walker, 45 Mo. 117; Green v. Castello, 35 Mo. App. 127; Devore v. Staeckler, 49 Mo. App. 547.]”

In these cases, the courts from which the appeals were taken had exclusive original jurisdiction of the subject-matter of the suits, and the rulings were put upon the well-settled doctrine, that it is not within the power of parties to a suit to confer jurisdiction of the subject-matter by consent.

In that class of cases, where concurrent jurisdiction of the subject-matter is given to the court from which and to which the appeal is taken, a different rule obtains. In such cases, if the appellee appears to the action and makes no objection to the defective or insufficient •affidavit for appeal, he will be deemed to have waived the defect and will not be heard to urge the insufficiency of the affidavit after judgment or in the appellate court. [Poston v. Williams, 99 Mo. App. 513, 73 S. W. 1099; Gerhart Realty Company v. Weiter, 108 Mo. App. 248, 83 S. W. 278.] Justices of the peace, by chapter 44, Revised Statutes 1899, are given exclusive original jurisdiction in all actions of unlawful detainer. The affi[690]*690davit for the appeal from the judgment of the justice neither literally nor substantially complies with the statute, and therefore was ineffectual to confer jurisdiction of the subject-matter on the circuit court, and for this reason its judgment is utterly void. But the appeal is not from the judgment, but from the refusal of the court to set it aside at a term subsequent to the one at which it was rendered. Defendant not only appeared at the trial before the justice, but was the successful party in that court, and was personally served with notice of the appeal. His petition for review — motion for new trial Avould be the more appropriate title — came too late, and no error'was committed by dismissing or refusing to entertain it. [E. 8. 1899, sec. 777; Jones v. Driskill, 94 Mo. 191, 7 8. W. 111; Haytt v. Wolfe, 22 Mo. App. 191.] But we think when the court’s attention was called to the fact that the judgment was a nullity, it should have set the same aside, ordered the case re-docketed and granted plaintiff leave to amend the affidavit for appeal. This may yet be done, but the record before us is not such as to warrant us to order it done. The judgment is therefore affirmed.

Goocle, J., and Nortoni, J., concur in result.

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BLAND, P. J.

(after stating the facts). — In respect to appeals from justices’ courts, the statute (section 4062, E. S. 1899) provides:

“No appeal shall be allowed unless the party applying therefor, or some person for him, will make affidavit that the application for an appeal is not made for vexation or delay, but because he believes the appellant is injured by the judgment of the justice, and stating whether such appeal is from the merits or from an order or judgment taxing costs.”

In Van Scoyce v. Wolfe, 73 Mo. App. 1. c. 432, the Kansas City Court of Appeals, in respect to a defective affidavit for an appeal, said: “While this defect did not altogether deprive the circuit court of jurisdiction, yet when attention was called to the insufficiency of the affidavit by motion of the opposite party, the defendant was bound to amend before the motion was determined or his appeal should have been dismissed. It has been several times so ruled by this court. [Spencer v. Beasley, 48 Mo. App. 97; Welsh v. Railway, 55 Mo. App. 599; Greischar v. Alexander, 56 Mo. App. 56.]

In this case the defendant, who was the appellant in the circuit court, did not offer to amend his affidavit. His appeal then should have been dismissed.

In Whitehead v. Cole & Rodgers, 49 Mo. App. 1. c. 429, the same court said:

[689]*689“In every case of an appeal from one court to another it is a fundamental principle that it is essential to the jurisdiction of the appellate court that the appeal was taken in the manner prescribed by law, and that where it is not so-taken, the appellate court has no jurisdiction to proceed to an examination on the merits.”

This court, in Green v. Gastello, 35 Mo. App. 127, made a like ruling on an appeal from the judgment of a probate court; and in Hyatte v. Wheeler, 101 Mo. App. 1. c. 359, 73 S. W. 1100, through Reyburn, J., in writing the opinion, said: “A literal compliance with the requirements of the statute is the only mode by which the appellate tribunal can acquire jurisdiction of the subject-matter of the former trial. The decision of the inferior court is final, unless reopened according to law. [Robinson v. Walker, 45 Mo. 117; Green v. Castello, 35 Mo. App. 127; Devore v. Staeckler, 49 Mo. App. 547.]”

In these cases, the courts from which the appeals were taken had exclusive original jurisdiction of the subject-matter of the suits, and the rulings were put upon the well-settled doctrine, that it is not within the power of parties to a suit to confer jurisdiction of the subject-matter by consent.

In that class of cases, where concurrent jurisdiction of the subject-matter is given to the court from which and to which the appeal is taken, a different rule obtains. In such cases, if the appellee appears to the action and makes no objection to the defective or insufficient •affidavit for appeal, he will be deemed to have waived the defect and will not be heard to urge the insufficiency of the affidavit after judgment or in the appellate court. [Poston v. Williams, 99 Mo. App. 513, 73 S. W. 1099; Gerhart Realty Company v. Weiter, 108 Mo. App. 248, 83 S. W. 278.] Justices of the peace, by chapter 44, Revised Statutes 1899, are given exclusive original jurisdiction in all actions of unlawful detainer. The affi[690]*690davit for the appeal from the judgment of the justice neither literally nor substantially complies with the statute, and therefore was ineffectual to confer jurisdiction of the subject-matter on the circuit court, and for this reason its judgment is utterly void. But the appeal is not from the judgment, but from the refusal of the court to set it aside at a term subsequent to the one at which it was rendered. Defendant not only appeared at the trial before the justice, but was the successful party in that court, and was personally served with notice of the appeal. His petition for review — motion for new trial Avould be the more appropriate title — came too late, and no error'was committed by dismissing or refusing to entertain it. [E. 8. 1899, sec. 777; Jones v. Driskill, 94 Mo. 191, 7 8. W. 111; Haytt v. Wolfe, 22 Mo. App. 191.] But we think when the court’s attention was called to the fact that the judgment was a nullity, it should have set the same aside, ordered the case re-docketed and granted plaintiff leave to amend the affidavit for appeal. This may yet be done, but the record before us is not such as to warrant us to order it done. The judgment is therefore affirmed.

Goocle, J., and Nortoni, J., concur in result.

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96 S.W. 305, 119 Mo. App. 685, 1906 Mo. App. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bader-v-jones-moctapp-1906.

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