Leeper v. Carter

137 Mo. App. 617 | Mo. Ct. App. | 1909

GOODE, J.

— Plaintiff sued before a justice of the peace for $21, alleged to be a balance due him from defendant on the price of one hundred and forty bushels of corn sold at forty cents a bushel. A counterclaim was preferred in two phases, in as many paragraphs of the answer, and in substance the statements regarding it are these; plaintiff had agreed to sell and deliver to defendant six hundred bushels of corn at defendant’s farm, for forty cents a bushel; pursuant to the contract had delivered one hundred and forty bushels on which defendant had paid $35, but had refused to deliver the remainder, though it had been demanded. Meanwhile the market value of corn had arisen to fifty-five cents, and on account of plaintiff’s default, defendant had been damaged in the sum of $69, for which he prayed judgment. The other phase in which the counterclaim was preferred, was an alleged agreement by plaintiff to sell defendant seventy-five or one hundred barrels of corn of five bushels each, instead of six hundred bushels. Plaintiff was given judgment by the justice, both on his cause of action, and defendant’s counterclaim; whereupon defendant filed an affidavit for appeal, gave an appeal bond and filed a transcript of the proceedings before the magistrate in the office of the clerk of the circuit court. The affidavit for appeal from the judgment of the justice was defective in not reciting whether the appeal was taken from an order or judgment to tax costs, or from the merits. [2 Mo. Ann. Stat., sec. 4062.] The case was docketed for trial in the circuit court September 30, 1907, and at the September term, was continued to the September adjourned term and docketed for trial November 7th. Plaintiff subpoenaed eight witnesses to be present on that day, but on the preceding day, November 6th, plaintiff moved to strike the cause from the docket and dismiss the appeal because the affidavit was -defective in the particular above mentioned. Defendant offered to file an amended affidavit, but the court refused to permit the filing, at the same time overruling plaintiff’s motion to dismiss the appeal and strike the case from the docket. The reason for these two rulings was that plaintiff’s motion to dismiss the appeal was made after he had prepared for a trial on the merits and only the day before the case was to be tried; wherefore the court held the fault in the affidavit was waived, and it was unnecessary for defendant to file another. The case was tried and a verdict returned in favor of plaintiff on his cause of action for $21 and in favor of defendant on his counterclaim for $29.30, or $8.30 in favor of defendant. Judgment was entered accordingly and this appeal taken. We are satisfied with the instructions and the question for decision is whether the circuit court acquired jurisdiction of the appeal taken by the defendant from the judgment of the justice of the peace, or should have dismissed the appeal. In order to save dismissals the statute expressly allow appellants in cases appealed from justices’ judgments to file new affidavits and recognizances before the motions to dismiss, because of faults in those documents as originally filed, are determined. [R. S. 1899, sec. 4072.] Those cases which are authority at present, hold the circuit court is not prevented from acquiring jurisdiction of an appeal by omitting to state in the affidavit filed with the justice, whether the appeal is taken from the merits or from the taxation of costs. [Welsh v. Railroad, 55 Mo. App. 599; Lowry v. Phillips, 57 Mo. App. 232.] The law being thus, if the lower court proceeded irregularly in denying defendant’s request to file a new affidavit and in overruling plaintiff’s motion to dismiss, which we do not decide, the error was harmless to plaintiff; whereas to reverse the judgment would render it harmful to defendant. And, according to analogies, it would seem plaintiff waived the error, if one occurred, by participating in the trial instead of standing on his motion to dismiss. [Lawry v. Phillips, supra; Ivy v. Yancy, 129 Mo. 501; Levin v. Railroad, 140 Mo. 624.]

The judgment is affirmed.

All concur.