149 Mo. App. 162 | Mo. Ct. App. | 1910
On or about the 16th day of March, 1907, appellant was notified by the city marshal of respondent city to appear before the police judge of said
On the return day of the justice’s summons, appellant appeared and filed a motion to dismiss the case for failure of respondent to file an itemized statement of the account sued on, or a statement of its cause of action; whereupon, respondent’s attorney asked leave to file an itemized statement of the account, which request the justice granted and overruled appellant’s motion to dismiss; and thereupon, the respondent’s attorney procured the file papers in the appeal case in the circuit court, above referred to, and copied word for word and figure for figure, the costs that had accrued in the circuit court in the former case, and filed the same in the justice’s court as the respondent’s cause of action. Appellant’s objection to this proceeding of the respondent’s attorney was disregarded by the justice, the parties went to trial, and the above stated facts having been fully developed, the justice dismissed the case at respondent’s costs. The justice allowed the respondent to appeal without bond.
When the case again reached the circuit court, the appellant (herein) filed a motion to dismiss the city’s appeal as follows: (Caption omitted.)
“Comes now the appellee in the above entitled cause and moves the court to dismiss the appeal herein for the reason that no appeal bond was given by appellant as is required by the statute, a condition upon which an appeal to this court can legally be allowed, and this court acquires no jurisdiction.”
During the pendency of this motion, the city filed a cost bond as follows: (Caption omitted.)
“We, the undersigned residents of the State of Missouri, hereby obligate ourselves to pay all costs that have accrued or may accrue in the above entitled cause.
“Everett Reeves,
“Geo. C. Peattie.”
The jurisdiction of the circuit court in cases of appeal from justices of the peace is acquired in a special and statutory manner and it is necessary in every case that it should appear that the appeal was granted in compliance with law. [Kelm v. Hunkler, 49 Mo. App. 664; Moulder & Simpson v. Anderson, 63 Mo. App. 34.]
Section 4060, Revised Statutes 1899, pertaining to justices, provides: “No appeal shall be allowed in any case unless the following requisites shall be complied with: . . . second, the applicant, or some person for him, together with one or more solvent sureties, to be approved by the justice, must, within the time prescribed in the first clause of this section, enter into a recognizance before the justice to the adverse party, in a sum sufficient to secure the payment of such judgment and the costs of appeal, conditioned that the appellant will prosecute his appeal with due diligence to a decision, ...”
The law governing justices of the peace and appeals and proceedings, section 4072, Revised- Statutes 1899, provides: “No appeal allowed by a justice shall be dismissed for want of an affidavit or recognizance, or because the affidavit or recognizance made or given is defective or insufficient, if the appellant or some person for him will, before the motion to dismiss is determined, file in the appellate court the affidavit required, or enter into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such defect or omission, with respect to such affidavit or recognizance.”
The filing of a bond for costs.during the pendency of the motion to dismiss the appeal for want of a recognizance was not a compliance with this law in any sense, and the objection of the appellant herein to the