Jamison v. Yates

7 Mo. 571 | Mo. | 1842

^* Opinion of the Courts delivered by

Scott, Judge.

This was an action commenced in a justices’ court against Jamison, where judgment was rendered against him, from which he appealed to the circuit court. The circuit court on motion dismissed the appeal, because the affidavit filed at the time of praying it was deemed insufficient.

The affidavit required to be made by the party appeal mg from the judgment of a Justice of the Peace, may be filed in the circuit eouz-t, after a motion to dismiss is made.

Prior to the late revision of the statutes, it was held, that an omission to file an affidavit for an appeal, or the filing an insufficient one, was a good cause for dismissing the appeal. But the provisions of the act of 1835 concerning justices’ courts, arc construed to warrant a change of this course of proceedings. A proper'construction of that statute authorises the circuit court to permit a party t > file an affidavit after a motion to dismiss is made, An act i f the last session of the general assembly has permitted this in express terms. This statute did nut introduce a new rule : it merely removed doubts entertained in relation to the construction of the former law.

Judgment reversed.

* Napton, Judge, absent from the bench.