Thomas v. Missouri Town Mutual Fire Insurance

Missouri Court of Appeals

Thomas v. Missouri Town Mutual Fire Insurance

89 Mo. App. 12, 1901 Mo. App. LEXIS 114

CourtMissouri Court of Appeals

DecidedMay 6, 1901

StatusPublished

Cited by9 cases

This text of 89 Mo. App. 12 (Thomas v. Missouri Town Mutual Fire Insurance) 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

Thomas v. Missouri Town Mutual Fire Insurance, 89 Mo. App. 12, 1901 Mo. App. LEXIS 114 (Mo. Ct. App. 1901).

Pincite

Opinion

BEOADDHS, J.

—The finding and judgment [14]*14the plaintiff, from which defendant appealed. Since the filing of the case here the plaintiff has moved to dismiss the appeal on the ground that the affidavit for appeal is not sufficient to give the court jurisdiction. The appellant contends that this motion can not now be considered because it was not filed in time, and because appellant was not notified by the respondent of the filing of the same. But as the motion raises the question of jurisdiction, which is always in order, we must first decide that question; for unless the affidavit for appeal is sufficient there is no case here for our determination. The affidavit reads as follows: <

“W. M. Bressler, the defendant’s agent, on his oath says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision of the court.”

Appellant claims that under the ruling of the Supreme Court in DeBolt v. Railway, 123 Mo. 496, the affidavit was sufficient. The only defect in-that case was that the plaintiff stated: “She considers herself aggrieved” instead of using the language of the statute, “believes,” which the court held to be sufficient.

While the word “considers” in the'case at bar was used, the affiant did not connect the word with the appellant, but stated that he considered “himself aggrieved by the judgment and decision of the court.” And further, he does not pray for the appeal on behalf of his principal, but as “prayed for by him.” It is true that he states that he is agent for the defendant, but he does not ask for anything in behalf of his principal, but for himself alone. It is the appellant that must be aggrieved and not the agent. We have no doubt but what agent and attorney who made the affidavit felt aggrieved " e action of the court; but it is possible the appellant may differently.

[15]*15It is a well-known fact that some times the client differs with his attorney as- to the expediency of adopting a certain course in a case. In order to give this court jurisdiction by appeal, the statute requires the party appealing or his agent to make an affidavit to the effect: “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.” It is not necessary that the affidavit should follow literally the language of the statute, but it must be substantially such an affidavit as the same requires. Manion v. State, 11 Mo. 578; DeBolt v. Railroad, supra. It has been held that appeals in civil cases are regulated entirely by statute, and that provisions regulating them must be strictly pursued. State ex rel. v. Woodson, 128 Mo. 497. But all the authorities agree that there must be a substantial compliance with the statute. The right of appeal is not a common-law right, but is a matter of statute, and such being the case it is imperative that the manner for taking appeals should be followed as to all essentials. The affidavit in this case is in no sense a statutory affidavit.

Appeal dismissed.

All eoncur.

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BEOADDHS, J.

—The finding and judgment [14]*14the plaintiff, from which defendant appealed. Since the filing of the case here the plaintiff has moved to dismiss the appeal on the ground that the affidavit for appeal is not sufficient to give the court jurisdiction. The appellant contends that this motion can not now be considered because it was not filed in time, and because appellant was not notified by the respondent of the filing of the same. But as the motion raises the question of jurisdiction, which is always in order, we must first decide that question; for unless the affidavit for appeal is sufficient there is no case here for our determination. The affidavit reads as follows: <

“W. M. Bressler, the defendant’s agent, on his oath says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision of the court.”

Appellant claims that under the ruling of the Supreme Court in DeBolt v. Railway, 123 Mo. 496, the affidavit was sufficient. The only defect in-that case was that the plaintiff stated: “She considers herself aggrieved” instead of using the language of the statute, “believes,” which the court held to be sufficient.

While the word “considers” in the'case at bar was used, the affiant did not connect the word with the appellant, but stated that he considered “himself aggrieved by the judgment and decision of the court.” And further, he does not pray for the appeal on behalf of his principal, but as “prayed for by him.” It is true that he states that he is agent for the defendant, but he does not ask for anything in behalf of his principal, but for himself alone. It is the appellant that must be aggrieved and not the agent. We have no doubt but what agent and attorney who made the affidavit felt aggrieved " e action of the court; but it is possible the appellant may differently.

[15]*15It is a well-known fact that some times the client differs with his attorney as- to the expediency of adopting a certain course in a case. In order to give this court jurisdiction by appeal, the statute requires the party appealing or his agent to make an affidavit to the effect: “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.” It is not necessary that the affidavit should follow literally the language of the statute, but it must be substantially such an affidavit as the same requires. Manion v. State, 11 Mo. 578; DeBolt v. Railroad, supra. It has been held that appeals in civil cases are regulated entirely by statute, and that provisions regulating them must be strictly pursued. State ex rel. v. Woodson, 128 Mo. 497. But all the authorities agree that there must be a substantial compliance with the statute. The right of appeal is not a common-law right, but is a matter of statute, and such being the case it is imperative that the manner for taking appeals should be followed as to all essentials. The affidavit in this case is in no sense a statutory affidavit.

Appeal dismissed.

All eoncur.

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89 Mo. App. 12, 1901 Mo. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-missouri-town-mutual-fire-insurance-moctapp-1901.

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