104 Mo. App. 362 | Mo. Ct. App. | 1904
(after stating the facts as above).— Í. The respondent before joining issue or submission of the cause, has protested against this court entertaining jurisdiction by moving to dismiss the appeal upon the two-fold ground that plaintiff, as appellant, did not comply with the condition of the statute in the form of affidavit filed, and that such affidavit appearing in the bill of exceptions was not sufficient or effective as an affidavit for appeal. Section 808, R. S. 1899, recites that no appeal shall be allowed unless, first it be made at the term at which the judgment was rendered, and second, the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment of the court. The right of appeal in civil actions was unknown to the common law, and is wholly of statutory origin, and it is therefore essential in the exercise of the right that the statutory requirements be strictly complied with. State ex rel. v. Woodson, 128-Mo. 497. In appeals from one court to another, it is essential to the jurisdiction of the appellate tribunal, that the appeal was perfected in the manner prescribed by law, and unless so taken, the appellate court has no jurisdiction to proceed to an examination of the merits, but must dismiss the appeal or affirm the judgment as the statute may determine. Green v. Castello, 35 Mo. App. 127. A substantial if not literal, compliance with . the statute is required and numerous cases might be invoked to that effect. DeBolt v. Railway, 123 Mo. 496; Thomas v. Ins. Co., 89 Mo. App. 12. Where an affidavit departed from the statutory phraseology in that the agent of appellant, the affiant, considered himself aggrieved, such form was declared worse than defective and no.affidavit except in name. Schnabel v. Thomas, 92 Mo. App. 180.
