101 Mo. App. 689 | Mo. Ct. App. | 1903
As this action stood before the justice of the peace, where it originated, it was an attachment proceeding against two defendants; W. J. Lewis, the tenant of the plaintiff and R. E. Letner, a subtenant under Lewis. The purpose was to collect a debt of $250, the rental of one hundred acres of land in Pemiscot
Constructive service on Lewis was obtained by publication and personal service on Letner. Lewis dei-faulted but Letner appeared and filed a plea in abatement ; also a denial that he owned the plaintiff anything. Judgment was entered on both the attachment and the merits against Lewis and in favor of Letner on the plea in abatement. This much is agreed by both parties. But as to whether there was judgment on the merits in Letner’s favor, there is a dispute — plaintiff contending there was and Letner that there was not.
1 Harris appealed to the circuit court and when the case come on for trial there,- dismissed' as to Lewis, pending the disposition of a motion filed by Letner tó dismiss the appeal on various grounds. One of the grounds was a misjoinder of parties defendant, and another that the appeal wa.s taken from a judgment in favor of Letner on the plea in 'abatement instead of on the merits.
The recital in the justice’s transcript as-to the judgment is well-nigh meaningless and supports one party’s contention as well as the other’s. In truth,- we are unable to ascertain from the transcript whether there was a' judgment on the merits in Letner’s favor and an appeal from it or not. But the affidavit for' the appeal establishes that it was taken from a judgment on the plea in abatement. Said affidavit reads as follows:
‘‘Before J. L. Swails a justice of the peace of Pas-cóla township, Pemiscot county, State of Missouri.
‘M. C. Harris, plaintiff, v. Wm. J. Lewis and R. E. Letner, defendants.
“State of Missouri, county of Pemiscot, ss.
“J. W. Bader, agent for plaintiff, being duly sworn, upon his oath says that this application for an appeal is from the judgment of the justice on the plea in abatement in the above entitled cause, and that the*692 same is not made for vexation or delay, but because be believes tbe appellant is injured by tbe judgment of tbe justice.”
Plaintiff’s counsel say in tbeir brief tbat Letner’s counsel will not deny tbe rendition of judgment by tbe justice against Letner on tbe merits; but in tbis assumption they are at fault; for in tbe brief for Letner it is’ positively asserted tbat plaintiff appealed only from a judgment on tbe plea in abatement.
Plaintiff’s counsel likewise complain of tbe circuit court’s ruling on tbe motion to dismiss as having been precipitately made pending an offer by them to' bave tbe justice amend bis transcript; and they say tbat bad their offer been allowed, tbe transcript would bave been made to show tbat judgment for Letner was given on tbe merits.
Tbe only amendments plaintiff’s counsel asked tbe circuit court to allow, related to tbe bond and affidavit for attachment, both of which were imperfect. So far as tbe record apprises us, permission to bave tbe justice’s transcript amended was never requested.
Error in tbe ruling of tbe circuit court on tbe motion to dismiss has not been shown, as it must be to warrant a reversal; for it is conceded an appeal from tbe judgment on tbe plea in abatement did not lie.
Tbe judgment is affirmed.
