Tegler v. Mitchell

46 Mo. App. 349, 1891 Mo. App. LEXIS 355

• Court: Missouri Court of Appeals
• Decided: July 2, 1891
• Status: Published

Opinion

Ellison, J.

This action is unlawful detainer. The affidavit to the complaint was insufficient in that the affiant swore that it was true “in substance.” Reilly v. Powell, 34 Mo. App. 431. But on appeal to the circuit court, pending a motion to dismiss, the complaint was permitted to be amended by appending thereto a. proper affidavit. This was rightfully allowed. R. S. 1889, sec. 5153. In Reilly v. Powell, no amendment was made or offered. The case of Turner v. Bondalier, 31 Mo. App. 582, is not applicable. The affiant in that case was a s.tranger to the proceedings at the time of making the affidavit. He made it as the agent of the plaintiff, and it was held that, as the plaintiff was an infant, he could not appoint an agent for such purpose. If was considered, therefore, that there was no affidavit in the case.

There is a further objection, however,' which seems-to be fatal to plaintiff’s case. The complaint does not. allege the property detained to be in the state of Missouri. This case is one in which exclusive original jurisdiction is vested in justices of the peace, a court of inferior jurisdiction. We can indulge in no presumptions as to such jurisdiction. McQuoid v. Lamb, 19 Mo. App. 153 ; Schell v. Leland, 45 Mo. 289. As, by section 5091, Revised Statutes, 1889, a justice has jurisdiction only of lands in his county, and as it could not be pretended, that a justice would have jurisdiction of a case which failed to show the land detained to be in the county, we see no reason why it should not also appear to be in the. state. It, therefore, not appearing anywhere in the record that the premises are in the state of Missouri, the justice had no jurisdiction, and we will reverse the judgment and dismiss the cause.

All concur.