210 Mo. 109 | Mo. | 1908
This is a motion to affirm a judgment. At the June term, 1907, of the circuit court of Randolph county, and on June 26, 1907, the plaintiff recovered judgment against the defendant in the sum of $6,300, On the same date motion for new trial was filed and overruled and an appeal granted to defendant to this court. Certified copy of the judgment and order granting the appeal was not filed here until December 5, 1907, which was long after the opening of our regular October term. The motion to affirm is based upon a failure of. appellant to comply with rule No. 28 of this court and sections 812 and 813, Revised Statutes 1899', and also a failure to comply with the following recent act of the Legislature:
“Section 1. No appeal shall-be allowed in any civil cause by any trial court to the Supreme Court, Kansas City Court of Appeals or St. Louis Court of Appeals until the docket fee of ten dollars in such ap*111 pellate court shall have first been deposited with the clerk of the trial court.
“Sec. 2. All acts and parts of acts inconsistent with this act are hereby repealed.
“Approved March 20, 1907.” [Laws 1907, p. 121.] The docket fee was paid to the clerk of this court upon the filing of the short transcript, December 5, 1907. There are affidavits and counter affidavits as to the facts which would go to make out an excuse, under the statute, for a failure to file in time. Upon these the court was satisfied that the statutory excuse for the failure to file the transcript here appeared, so the necessity of going into this matter is obviated.' This court has overruled the motion to affirm, but inasmuch as such action necessarily involved the construction of the legislative act quoted above, it was thought best to give expression to our views by written opinion, and the case was assigned for an opinion.- To that question alone the opinion will be directed.
The sole question presented, to our mind, is whether or not this new statute is of such a jurisdictional character as would invalidate an appeal otherwise duly granted. In other words, the contention here is to the effect that, notwithstanding the fact of an appeal having been duly granted, by a court of general jurisdiction, yet such order granting the appeal is void because of a failure to deposit ten dollars, as per the requirement of the statute quoted. We are not inclined to agree with the contention of respondent. By section 3241, Revised Statutes 1899, the clerk of the Supreme Court and the clerks of the Courts of Appeal are allowed, in lieu of other fees, the sum of ten dollars to be paid by appellant or plaintiff in error. If appellant or plaintiff in error is successful he is entitled to recover back this fee so paid by him. This Act of 1907 evidently undertakes to require the payment of these costs, lumped by the statute at the sum of $10,
“Clerks of the Supreme Court and Courts of Appeal, in lieu of other fees, shall severally be allowed and paid by the appellant or plaintiff in error a fee of ten dollars, which shall include all the costs in the case, including a certified copy of the opinion and mandate to the court from which said cause shall be sent, and all fee-bills and executions issued in said cause: Provided, that nothing herein shall be construed to apply to any one who was permitted, as provided by law, to sue as a poor person.”
Thus strictly speaking there is no such thing in
We are not impressed with the view that the payment of this fee is necessarily jurisdictional. Nor is it such a condition preceden^ as will invalidate an appeal otherwise legally allowed. We are of the opinion that the failure to comply with this statute, when such failure is not called to the attention of the trial court, is an irregularity, which can he cured in the further proceedings by a payment of these costs, for costs they are.
By section 833 a party applying for a change of venue must deposit with his application the sum of ten dollars, the language of the statute being:
“Whenever any change of venue is applied for in any civil cause from any circuit court of any county, or city constituting a county, to any other county or such city, in another circuit, the party or person applying for such a change of venue shall, with his-appli*114 cation, deposit' with the clerk of the circuit court the sum of ten dollars; and thereupon, if such change of venue is awarded the clerk of said court shall transmit said sum of ten dollars, together with the transcript and proceedings in the cause, to the clerk of the court to which the removal is ordered; and no transcript shall be transmitted or received by any clerk on such change of venue, as aforesaid, unless said sum of ten dollars shall accompany such transcript: Provided, however, that whenever any cause shall be transferred to another circuit by agreement of parties, such sum shall be paid by both parties, before any change of venue is awarded, in equal shares, and transmitted as aforesaid.”
This statute has been before this court in the recent case of Cunningham v. Railroad, 165 Mo. 270, wherein we held that a change of venue granted without said sum having been deposited, would not authorize the trial judge at a’subsequent term to vacate the order granting the change of venue, and that the change was as effectively had as if the deposit had been made with the application. .So under the statute before us we take it that the statute means that this deposit should be made when the application for the appeal is made, yet if it is not made, and no objections are urged at the time, and the- appeal is granted, the jurisdiction of this court is as effective as if the deposit had been made with the application for appeal, provided the appellant can run the gauntlet with our clerk under section 3241, supra.
On the other hand, if timely objections are made in the trial court, such court would be- fully authorized to refuse the appeal, if it can be said that the term “docket fee” used in the act means the costs provided for by section 3241. [State ex rel. v. Flournoy, 160 Mo. 324.] Whether it can be so said we have not thus far expressed any definite opinion and do not do so now. To
For the reason hereinabove expressed, the motion, to affirm the judgment is overruled.