163 Mo. App. 587 | Mo. Ct. App. | 1912
This is a suit on account for the sum of fifteen dollars and fifty cents commenced before W. 0. Underwood, justice of tbe peace. A change of venue was had to H. R. Yan Yoast, another justice of the county. On the 12th day of August, 1910, a trial was had and plaintiff obtained a verdict for the full amount of bis account, upon which the justice rendered judgment with costs. On the 20th day of August defendant filed an affidavit in the usual form for an appeal to the circuit court of the county. On the 16th day of September the justice granted the appeal as prayed, and on the 3d day of October filed his transcript of the cause with the clerk of the circuit court, accompanied with the papers in the case.
At the November term of the circuit court plaintiff filed his motion to dismiss the appeal which was
Section 7580, Revised Statutes 1909, provides that no appeal from tbe judgment of a justice shall be dismissed for want of an affidavit or recognizance, or because tbe affidavit or recognizance is defective or insufficient, if a proper affidavit or récognizance is made before tbe motion to dismiss tbe appeal is determined. Tbis section of tbe statute has been construed by tbe appellate courts of tbe state in many cases, among which are tbe following: Distilling Co. v. Kermis, 79 Mo. App. 111; Drake v. Gorrell, 127 Mo. App. 636; Gester v. McKinney, 47 Mo. App. 62; Devore v. Staeckler, 49 Mo. App. 547; Welsh v. Railroad, 55 Mo. App. 599; Moulder v. Anderson, 63 Mo. App. 34, and many other cases.
In Distilling Co. v. Kermis, supra, tbe bond for appeal was filed with tbe justice on tbe day after tbe judgment was rendered, but was not approved by him until after tbe expiration of ten days. Tbe court held that
In Jester v. McKinney, supra, the affidavit and bond for appeal were filed with the justice within the time allowed by the statute, but the justice entered the order allowing the appeal after the expiration of such time. The sufficiency of the appeal was sustained.
In Drake v. Gorrell, supra, the garnishee filed an affidavit and bond for appeal which the court held was sufficient to give the circuit court jurisdiction.
In Devore v. Staeckler, supra, the justice’s docket failed to show that any affidavit or bond for appeal was filed, or that any appeal was allowed. Held, that the circuit court did not acquire jurisdiction.
In Welsh v. Railroad, supra, the affidavit for appeal was defective. Held, that although the affidavit was defective the filing of the justice’s papers with the clerk was sufficient to confer jurisdiction. In Moulder v. Anderson, supra, it is held, that the circuit court never acquired jurisdiction, because no appeal was ever allowed, and no recognizance filed.
Section 7568 provides that no appeal shall be allowed unless certain requisites are complied with, viz.: The appeal shall be taken within ten days after the judgment is rendered, but if the party is a non-resident, the appeal may be taken in twenty days after judgment; second, the applicant must, within the time prescribed, give his recognizance with security sufficient to secure the payment of the judgment and. costs of the appeal, etc. Section 7570 provides that no appeal shall be allowed unless the party applying therefor shall make affidavit containing certain statements.
The obvious purpose of section 7580 was to prer vent the miscarriage of justice by reason of the liability of the parties litigant and the justices of the peace to fail to follow the strict provisions of said sections 7568 and 7570 providing for the manner of taking
It seems to us that it is essential that such appeals should be granted within the statutory period of ten days, and the statutory bond and affidavit filed within such time; or otherwise, it could not be known that a case was finally settled if a justice can grant an appeal within an indefinite time after the rendition of the judgment. In this case the justice could not have been compelled to grant an appeal because the statute was not followed by the filing of a recognizance and an affidavit, yet, if he had the power to grant the appeal at any time after the expiration of ten days from the date of the judgment, he could have postponed action and granted the appeal within one year there