Ford v. Gray

131 Mo. App. 240 | Mo. Ct. App. | 1908

BROADDUS, P. J.

This suit originated in a justice’s court where defendant prevailed and the plaintiffs appealed. When the case reached the circuit court defendant moved to dismiss the case because the court had no jurisdiction. The specific grounds assigned for a dismissal are: that there was no statement filed setting out a cause of action; and that there was no appeal.

The suit- was for the sum of $50 evidenced by a written subscription whereby defendant among others agreed to pay to plaintiffs a certain sum for the purpose of digging a new channel for Grand river east of Akron, Missouri. This subscription paper was filed with the justice, but Avhen he sent his transcript on the appeal to the circuit court he failed to send it with the other, papers, but it was afterwards filed in the circuit court. The defendant entertains the opinion that the paper cannot be considered as a paper in the case because it was not brought up on a rule upon the justice or by certiorari. The entry on the justice docket shows that the paper was filed with the justice, and the justice testified in the circuit court also to the fact of filing. That was sufficient. Defendant has cited a number of cases to support his view, but they have no application. It was the duty of the justice to send the paper and all others with his transcript, but because he failed to send this particular paper at the time he sent his transcript, did not make it unlawful to send it when his attention was called to the matter. The authorities cited refer to transcripts, and it is properly held that a justice cannot amend his transcript unless required to do so by an order of the circuit court.

The paper in question did not, without some accompanying statement set out a very clear cause of action, yet it was sufficient to authorize the amendment made to it in the circuit court.

The judgment Avas rendered by the justice on October 17, 1905. On the 25th day of the month plaintiffs made affidavit for appeal and filed their appeal •bond. The appeal bond was approved by the justice but it does not appear that he made an order granting the appeal. The affidavit and bond for appeal were both defective, not being in the form prescribed by the statute. The defendant moved to haye the appeal dismissed because of the defects in the affidavit and appeal bond which the court overruled. The court also permitted plaintiff to file a proper appeal bond. Under section 4066, Revised Statutes 1899, when a bond and affidavit for an appeal have been filed an appeal should be considered as alloAved, although no entry thereof appeared in the record. Under section 4072, idem, the appeal should not have been dismissed on account of the defective bond and affidavit. [Curtis v. Tyler, 90 Mo. App. 345.] But aside from what has been said defendant after his motion to dismiss the appeal was overruled waived jurisdiction by appearing to the merits of the cause, as the court had jurisdiction of the subject-matter. [Long Bros. v. Bolen Coal Co., 56 Mo. App. 605.]

On the trial it was admitted by defendant that “there was a sufficient consideration for the execution of the instrument sued on if the same was executed or authorized or directed by him to be executed by him.” This admission left only the question as to the execution of the instrument. The signature was not in the hand writing of the defendant, but the testimony of witness Maroney was that defendant told him he would give fifty dollars to the project and to put his name down; that he had the subscription paper at the time, and that he put it down just as defendant told him. Other witnesses corroborated his testimony. The evidence of defendant was to the contrary and that his agreement if any was to pay in work. The jury found for the plaintiffs and defendant appealed.

Several instructions were given on behalf of plaintiff. Specific objection is made to the second. It reads as follows: “The court further instructs the jury that it is not necessary in order that defendant may be liable upon said subscription list that he should have signed the same, or to have,used the words to witness Maroney that, “I authorize you to sign my name;” but if the jury believe from the preponderance of the evidence in the case, that if he used other language meaning to convey to said Maroney that he wanted to give $50 as a subscription for him and that the said Maroney so understanding the same, did put down the defendant’s name upon said subscription list for said sum of $50 then the defendant is liable upon the same, etc.”

The objection is that the instruction is argumentative. The objection is well founded. It is argumentative .all the way through. And the argument is good and forcible. But for that very reason it was erroneous. [Flannery v. Railroad, 44 Mo. App. 396; McClure Bros. v. School District, 66 Mo. App. 84.] And instructions one and three are commentaries on the evidence and for that reason objectionable. [Swink v. Anthony, 96 Mo. App. 420.] All authorities condemn such instructions. But plaintiffs insist that they could not be harmful because the defendant’s instnfctions in that respect are commendable. There is no conflict and defendant’s instructions are clear, but the plaintiffs obtained the advantage by arguments and comments, which were calculated to unduly influence the jury in their favor.

For the errors noted the cause is reversed and remanded.

All concur.