Drake v. Gorrell

127 Mo. App. 636 | Mo. Ct. App. | 1908

JOHNSON, J.

Plaintiff brought his action against the defendant before a justice of the peace and the Missouri Pacific Railway Company was summoned as garnishee. Judgment was taken against defendant and the garnishee. The defendant made no attempt to appeal. An appeal was allowed the garnishee to the circuit court and a transcript of the proceedings was filed in the office of the clerk of that court on the 16th day of April, 1904. In November, 1905, the cause was dismissed for want of prosecution on the day it was docketed for trial. Afterward, plaintiff brought it here by writ of error.

It appears there was no affidavit for the appeal nor was there any bond. There are papers in the record whereby it appears that the St. Louis, Iron Mountain & Southern Railway Company, by its agents, made affidavit for appeal and gave an appeal bond, but since the justice allowed the appéal to the garnishee and lodged the papers and transcript with the circuit court, that court had jurisdiction of the cause. [Welsh v. Railroad, 55 Mo. App. 599; Draper v. Farris, 56 Mo. App. 417; Watson v. Barbee, 55 Mo. App. 147; Nicholson v. Railroad, 55 Mo. App. 593.] Those cases overruled that of Whitehead v. Cole, 49 Mo. App. 428, though the latter was inadvertently cited to support one part of the case of State to use v. Hammond, 92 Mo. App. 231.

It is contended by plaintiff that as the record fails to show affirmatively that notice of appeal from the justice was served on plaintiff by the garnishee in the time and manner prescribed by statute, the circuit court acquired no jurisdiction over the cause except for the single purpose of dismissing the appeal or affirming the judgment at the option of the appellee and, therefore, error was committed in dismissing the cause on account of the absence of plaintiff at the time it was called for trial. While it is stated in Ellis v. Keys, 47 Mo. App. 155, and in State to use v. Hammond, supra, that where no notice of appeal is given, there is no jurisdiction of the cause, yet it is clear that jurisdiction of the person is what is meant. The circuit court becomes possessed of the cause upon filing of transcript and papers by the justice. Plaintiff cites also the case of Roll v. Cummings, 117 Mo. App. 312, to support his position, but it will be seen that where jurisdiction is there spoken of, jurisdiction of the person is meant and it is so stated at page 317 of the report. The notice of appeal has reference to jurisdiction of the person. It has been likened to a summons. [Cooper v. Accident Co., 117 Mo. App. 423.] The statute itself reads that the appeal should not be dismissed for want of notice at the first term (section 4075), thus showing that the want of notice does not affect the jurisdiction of the cause.

The failure of the garnishee to give notice of appeal in accordance with the statute constituted a failure to confer jurisdiction in the circuit court over the person of the plaintiff and deprived it of authority to make any other disposition of the cause thanl to affirm the judgment of the justice or dismiss the' appeal at the election of plaintiff. In such state of case, the plaintiff could not be in default since he had not been brought into court and, manifestly, it was error for the court to treat him as one in default by dismissing his case. [R. S. 1899, sec. 4076.]

But it is said by the garnishee that notice of appeal in fact was served on plaintiff in accordance with the statute and a written notice formally sufficient, service of which appears to be acknowledged by plaintiff is attached as an exhibit to an affidavit filed in this court by the garnishee. Counsel argues that the statute (section 4074) does not require the filing of the notice and that the service of the statutory notice of the appeal is all that is required to confer jurisdiction on tbe circuit court over tbe appellee. Tbis is true, but tbe fact that notice was given, being jurisdictional, must affirmatively appear on tbe face of tbe record either by tbe filing of the notice and tbe return thereon with tbe circuit clerk, or by a recital in the judgment or order disposing of tbe cause, of tbe fact that tbe notice was given. Tbe record before us being silent as to tbis important fact, we have nothing on which to base a presumption that tbe notice was given. We could not permit proof of tbe fact to be made in tbis court as that would involve the assumption that we have tbe right to determine an issue of fact. Tbe notice and affidavit offered by tbe garnishee must be ignored and tbe cause determined on tbe face of tbe record properly before us. For tbe reasons stated, the omission from tbe record of any showing that tbe notice of appeal was served infects tbe judgment with reversible error. Accordingly the judgment is reversed and tbe cause remanded.

All concur.