State ex rel. Orr v. Gates

88 S.W. 640, 113 Mo. App. 649, 1905 Mo. App. LEXIS 260

• Court: Missouri Court of Appeals
• Decided: June 26, 1905
• Status: Published

Opinion

ELLISON, J.

— The plaintiff brought this action to recover taxes alleged to be due the city of Carrollton. The trial was had before the court without a jury and resulted in favor of the'defendant, for whom judgment was entered.

The trial was had and judgment rendered on September 24, 1904, and the record recites that on that day an affidavit for an appeal was filed and that the appeal was granted. The clerk endorsed on the back of the affidavit that it was filed on that day. But the affidavit itself shows that it was sworn to on October 13, 1904, that being after the adjournment of court. The record stating that the affidavit was filed on September 24, would ordinarily control. It would import absolute verity unless overcome by some other record of superior probative force. It is well established in this State that, though the record recites due and proper service of summons, if the writ itself with the return of the sheriff, contradicts such recital the latter will control. So in this case, though the record recites the filings of an affidavit on September 24, it must yield to the affidavit itself showing October 13 as the date. [Cloud v. Pierce City, 86 Mo. 357; Blodgett v. Schaffer, 94 Mo. 652; Adams v. Cowles, 95 Mo. 501; McClanahan v. West, 100 Mo. 309; Williams v. Monroe, 125 Mo. 547; Bell v. Brinkmann, 123 Mo. 270.]

The recital in the record as to the filing of an affidavit for an appeal on September 24, 1904, must be held to be the sort of affidavit shown by the paper itself. [Laney v. Garbee, 105 Mo. 355.]

The appeal must be dismissed.

All concur.