99 Mo. App. 513 | Mo. Ct. App. | 1903
-This suit originated in a justice’s court where trial was had and judgment was for defendant, from which plaintiff appealed to the circuit court where he recovered a,verdict which was set aside on motion, from, which action of the court he appealed here.
The evidence tended to show that William H. Posten, the infant, was the owner of a certain horse, which he desired to exchange for another, and for the purpose
The jury were instructed by the court to the effect that if they found the facts as claimed by plaintiff they would return a verdict in his favor. Amongst other instructions, the defendant asked the court to declare as a matter of law that plaintiff was not entitled to recover on the facts proved. This declaration was refused by the court. The finding of the jury was for the plaintiff, which finding, on motion, the court set aside, and assigned as a reason therefor that the giving of plaintiff’s said instruction and the refusing of the one offered by the defendant, was error.
Lhe defendant insists, in the first place, that the record fails to show that the circuit court had jurisdiction, for the reason that there was no valid appeal taken from the judgment of the justice’s court; and, second, that it does not appear that any affidavit for an appeal was ever filed by the plaintiff from the circuit court to this court.
The first objection is based upon the fact that the affidavit for an appeal from the justice’s court was made, not by the next friend, but by the infant himself. There was no objection to the appeal on the trial in the circuit court, and we are of the opinion it is too late to insist on that ground for a dismissal in this court. Section 4072, Revised Statutes 1899, provides: “No appeal allowed by a justice shall be dismissed for want
Second. It is true there is to be found no affidavit for an appeal to this court in the record. Still, the record proper states that one was filed. the recitation of the record imports verity, which is conclusive upon all parties to the suit. And the further contention that the plaintiff filed no motion to set aside the action of the court for granting a new trial must be disregarded for a similar reason, as the record also states that one was filed.
the remaining question is, was the court justified in setting the verdict aside for the reasons given? the evident conclusion by the court was, that on the facts plaintiff was not entitled to recover. the plaintiff has presented bis case upon the theory that it was the opinion of the court that the action could not be maintained in the form of replevin. "We will not follow bis argument in that direction, but merely content ourselves in discussing plaintiff’s right to recover as a matter of law, independent of the form of proceeding. the pro
The cause is therefore affirmed.