Curtis v. Tyler, 90 Mo. App. 345

Curtis v. Tyler

90 Mo. App. 345

Kan. Ct. App.

1901

Check Treatment

SMITH, P. J.

The plaintiff commenced an action of replevin before a justice of thе peace in which he recovered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment. About the only question presented by defendant’s appeal is that' of jurisdiction.

*347It appears from the abstract of the record now before us that the justice filed with the clerk of the circuit court a trаnscript of his docket entries in the ease, but it did not appear from anything therein stated that the plaintiff had filed an affidavit or bond for an appeal nor that an аppeal had been granted. The defendant filed in the circuit court a motion to dismiss the appeal for the reason (1) that the plaintiff had not filed before the justiсe an affidavit for an appeal, and (2) that the justice’s transcript did not show that an appeal had been granted. Pending this motion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and on the same day the plaintiff filed a motion for a rule on the justice requiring him to correct his transcript so that it would show the allowance of an appeal and the filing of the affidavit and bond for the appeal granted November 1, 1900. The court on the same day overruled the former of said motions and sustained the latter by ordering that the justice be “permitted to аmend his transcript by changing the date of plaintiff’s appeal and permitting the plаintiff to sign the affidavit for the appeal after showing to the court that she had sworn tо the same before the justice.”

The justice, in supposed compliance with the above order, interlined his original transcript by inserting in his docket entries the following: “Now on the first day of November, 1900, before me personally appeared Belle J. Curtis, in thе above entitled cause, and files her affidavit and bond for an appeal whiсh said bond is approved by the justice and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an appeal granted to the circuit court.” It is contended by the defendant that the justice’s amendment, showing the filing of affidavit аnd bond for the appeal and the granting of tho appeal, was unauthorized by the order of the court, and, therefore, notwithstanding the amendment of the transcript, thе circuit court still was without jurisdiction.

The order of the court, as has been seen, went no further than ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to direct the filing of affidavit for the appeal; beyond *348that- the amendment was made by the justice on his own motion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and must be held unauthorized. Norton v. Porter, 63 Mo. 345; Smith v. Chapman, 71 Mo. 217.

With the unauthorized part of the amendment out of the. way, it did not appear from the transcriрt alone that an appeal had been taken, but it did appear from it and the accompanying papers, including the affidavit filed by leave of the circuit court, that the justice did return the appeal though no entry thereof appears in the transcript of his docket entries. We take it from the recital in the order allоwing the affidavit to be made, that the court must have found that the affidavit for the apрeal had been made before the justice. The record is quite defective, but wе infer that the bond for the appeal was timely lodged with the justice and by him returned to the-•appellate court, since no point was made as to it. The case, it sеems to us, should be regarded as one where the affidavit and bond for an appеal was lodged with the justice in due time and by that officer returned to the appellаte court without any entry thereof appearing in the transcript of his docket еntries. If this conclusion be correct, as we think is the case, then, under section 4066, Revised Statutes 1899, the circuit court had jurisdiction of the cause. The appeal, though tаken irregularly,- we think, conferred jurisdiction. Moulder v. Anderson, 63 Mo. App. 34.

The cause was tried by the court without the aid of a jury. No instructions were requested or given. The rule is quite well established that in cases.where the trial court is intrusted with both facts and law, this court must -assume the facts tо be as the court found them; and especially is this so where there is substantial evidenсe, as here, in the record to justify the finding. Caruthers v. Williams, 58 Mo. App. 100; Swayze v. Bride, 34 Mo. App. 414; Gaines v. Fender, 82 Mo. 497; Hamilton v. Boggess, 63 Mo. 233.

It would seem from the abstract that the testimony of the *349plaintiff’s husband was admitted’without objection, and this being so the defendant has nothing to complain of as to that.

Not discovering that any error was committed by the trial court prejudicial to defendant, it results that the judgment must be affirmed.

All concur.