*1 51 injury, illustrated in v. prior to tlie last as the case of Goebel Mo. (5). W.
Candy Co., supra, (2d) 50 S. l. c. 744 743, therefore, commission, The in a matter of law erred when it injury eye previous respondent’s held that authorized the awarding compensation permanent for two-thirds of that for total disability correctly per $6 other cases. The commission awarded week, during expiration respondent, the life of after the of three twenty-five weeks. This on per hundred was based cent of re less, average spondent’s earning', however, per than $6 not week as provided for in 1929. 3316, Revised Statutes analyze finding
AYewill not of facts and conclusions of law made the circuit court. The circuit court should have re Compensation manded the case to the Commission. It had no au thority finding judgment awarding to make a facts and enter compensation. Co., Atlantic & Pac. Tea Great Mo. [Schulz 616, (2d) 129; Co., 56 S. Ely Dry l. c. & Russell v. Walker Goods (2d) 60 S. W. 44. hereby reversed, court is 'the award of Compensation Commission set aside and the cause remanded to Compensation proceedings Commission for further incon- opinion. Cooley Fitzsimmons, CC., sistent with this concur. PER foregoing opinion by AYestiiiies, CURIAM: The isC., adopted as judges All the court. concur. of Kansas at the Relation Stock Yards
State of Missouri H. Corporation, Relator, v. Francis Company, Trimble, Ewing Henry Judges C. L. Bland, Arnold, (2d) Woodcock. 62 S. W. Appeals, Court Chester T. 473. Two,
Division June 1933.* Opinion Term, April 20, 1933; *NOTE: filed at October motion . rehearing filed; Term, May overruled motion at June 1933. *2 Borders, Roach, Jr., & Borders Warrick and Cornelius for relator. *3 respondents. Grover Childers *4 whether question for is we
FITZSIMMONS, C. The decision respondents, against peremptory mandamus should our writ’of issue Our writ judges City Appeals. alternative Kansas Court of the dismissing an of their court them to set aside an order commanded that for on its merits or appeal and to reinstate the cause decision having Respondents filed they why do so. they show cause should not judg- for filed its motion writ, to alternative relator their return the pleadings. ment the Appeals juris- City of had
The is whether the Kansas Court issue Woodcock, T. in which one of the diction of a certain cause Chester there, respondent Kansas respondents here, plaintiff and and here, ap- City Company, relator was defendant and Stock Yards Judgment having in Coun- pellant there. the Jackson been-rendered against relator, ty $300 in the sum of Circuit Court company that Company, was filed on behalf- of Stock Yards there application appeal, in trial and affidavit for the the court a certain jurisdictional question validity sufficiency precise of is the which appeal application us. for are as follows: before and affidavit Appeal. For “Application and Affidavit ‘‘ cause, Comes now defendant in entitled aud the the above moves grant judgment an appeal the to it from and orders the court the in in overruling court defendant’s motion for a new trial and ar- City, rest, Appeals to the Kansas Court at Kansas Missouri.
“(Signature Attorneys) “Attorneys for Defendant. County Missouri, Jackson, ss. “State of Attorney) being sworn, “(Name age, duly on his of lawful attorneys agents one of for the oath states that he is the defend- duly in is authorized to and cause, ant the above entitled does for behalf said defendant. Affiant make this affidavit and on appeal further states on behalf of said defendant here- that taken delay, in believes is not taken vexation or but because affiant for ruling by aggrieved is appellant truth and fact that overruling motion a new of this court defendant’s for decision judgment. and motion arrest of “ Notary.)” (Signature jurat .of Affiant and remedy proper compel is It is conceded that mandamus jurisdiction properly a cause before an inferior court to exercise Company v. City Light Trimble it. ex rel. Kansas and Power [State et al., 696.] right appeal purely is
I. often that It has been ruled (2 1286), p. specifies Ann. statutory. 1018 Mo. Stat. may appeal which an be taken. The
judgments from and orders “Any party parts statute, case, are: to a pertinent that to this any civil aggrieved any judgment circuit court any suit Constitution, prohibited appeal which is not cause having jurisdiction from may appellate his take judgment, ... or trial, any new arrest of order or provides case.” Section any final in the authority under of Sec (that taken “no such during 1018) First, be made term shall allowed it tion be unless: rendered; and, appealed from was at decision which the or term, during the same file agent shall, appellant or his second, the made appeal is not affidavit, stating such his the court *5 appellant believes that the delay, affiant or but because the vexation These judgment stat by of the court.” aggrieved decision is the or It fix appeal the conditions. right and limit the utes define and party a aggrieved give an do not will observed that the statutes be new for a trial overruling a motion appeal an right from order from appeal an give right of judgment or but do in arrest a sustaining will also be observed that such a motion. It order among appeal is not allowance of application for an order of written a formula is a condi an affidavit in stated but that the conditions appeal, took an attorney relator, by his affidavit for tion. The overruling ruling court de this appeal from “the decision ’’ judgment, in a motion arrest ’s motion for new trial and fendant way 1018. by by And appeal Section which an not authorized was 1020, for allowancé of meeting by fixed the the condition trial court an affi be filed in the appeal he made and caused to the In state of the case statute. this which does not conform to the davit Kansas law. The appeal authorized in an he did not fact take jurisdiction cause, the Appeals did not obtain Court of of. in har conclusion is appeal. This rightly dismissed the mony prior with decisions of this court. Co., v. Martin’s Food Service
In the case of 'Bonfils Supreme Court from appeal to the appellant 253 S. W. took an judgment. This court overruling the in arrest of the order motion authority law. The appeal because it without dismissed legislative making banc in made clear idea court en its sustaining appeals allowance between orders a distinction overruling The orders motions for a new trial and arrest. legislative easy get words of the court are as follows: “It is order, allowing appeal from the idea the difference between an sustained, judgment when motion for new is trial, or arrest of they, when If either of them be such motions are overruled. or sustained, follow, then a retrial would and to test the correctness of an appeal the first trial is allowed from order newa trial, sustaining hand, On if or motion arrest. the other these overruled, will motions be then there be a final from which appeal steps procedure, must be taken. These motions are but - (on rightful- appeal) but to obviate a new trial without a test granted appeal or- ness of the first the lawmakers an from the sustaining der either the motion for a new trial the motion in ar- or plane. Both if rest. motions stand the same But these motions overruled, entered, be then a final from which an lie, will provide ap- and there was no reason to statute for peal thing, from such orders. This is the reason of the but we need go say to the reason. It suffices to that the statute makes no overruling provision a motion in ar- an order fpr judgment. present appeal being authority rest of The without law should be dismissed.” Evans,
In the case Arcadia Timber Co. appellant overruling took an an order appearing motion for a new trial. in the For this and other reasons Supreme record the appeal. Court dismissed the *6 57 dismissing appeal its in Appeals, in of Court- of case City Company, v. Stock Yards cited the Bonfils Woodcock Company Timber cases as for and the Arcadia authorities its action. Purcell, 436, v. 287 230 120, In Mo. S. W. the case Bonanomi there appealed cross-appeals this court. from were to Plaintiff an order for overruling involuntary his motion a new trial to set aside an and appeal was as to one defendant. This dismissed it nonsuit because was statute. Under not authorized a like state of facts this court (King like order in the Wehrs v. al. made a case of Sullivan & et 187 King, appellants), S. W. 825. appellants interveners and lawyers appealed the last named case were a firm of who from an overruling order their motion new trial of their claim for for fees services, having for disallowed their might many, claim. cases, Other which there are cited be to show consistently appeals that this court has dismissed from orders which any specified do fall within not the classes in Section 1018. But quite they unnecessary. would be but and cumulative in support peremptory II. Relator the issuance of writ cites point. cases which Kennedy Bowling, are not in In the v. case 401, (2d) 4 S. W. the trial court sustained defendants’ judgment. motion for a new trial and in arrest ap- Plaintiffs pealed appeal they language in their affidavit for followed the appealed and referred the matter “aggrieved” “judgment which were they as the and decision complained appeal court.” Defendants that the affidavit for was not order from the a new trial. The banc, adopting part opinion, rightly court en of the divisional objection against In ruled that the defendants. that case the order sustaining appealable the motion for a new trial one under Section 1018 and the affidavit was the formula of Section 1020 for appeals all 1018. allowable under Section
Cassidy Joseph, (2d) 152 W. of St. merely which relator relies decided that the omission of the word appeal eomptying “vexation” affidavit otherwise with Re 1929) 2040 (1020, vised Statutes section R. S. requiring ap pellant stating file an affidavit to- not made for delay, error, clerical which copying vexation or is a is a mistake or writing, give juris affidavit on an amendment is sufficient to objection. timely diction on the absence of In the instant fault of case the relator’s affidavit was “the accidental not omis something write,” sion of the scrivener intended which “it would require evidence to convince us that it was his deliberate intentional act,” Cassidy as court said case. The this’ affidavit here is de fective alone for its omission words but for not its deliberate and ap- the conditions which do fulfill phrases use of intentional by the peal fixed statute. opinion supporting its Appeals, in its
The Kansas Court distinguished properly several of relator’s order of dismissal *7 authority urges upon us as for cases which relator Supreme Court v. Bridge & Construction Co. writ. In St. peremptory the Louis Co., 664, 72 Mo. re Carthage the Memphis, & Northwestern submitted, affi that the objected, cause had been spondent after the aggrieved,” plaintiff instead of “that feels davit for recited ” aggrieved,’ etc. This appellant is “that believes that the “affiant against Cooley of respondent. In point was the case ruled the 101, 51 W. in which City Co., P. 149 Mo. S. 487, v. Kansas & G. R. Ap Court of adopted opinion the this court the of that, appeal, appellate a former the court peals, appeared upon it for When came on trial a second reversed and remanded the cause. it for that time, dismiss the cause the reason defendant moved to therefore, jurat appeal, of had not attached to the affidavit been jurisdiction. Appeals of had had The trial court that the Court not taking appellant counsel had testimony to the effect that after by oversight, had clerk, to the affidavit that the fact sworn jurat, permitted jurat to the added and over omitted attach his to -be question Upon appeal, the ruled the motion to dismiss. the second jurisdiction adversely party of of the first was ruled to the raising Causey 358, In 11 S. Wittig, it. case of v. the (2d) regular 11, form but it not bear the affidavit was did signature- to the affiant. However there was attached it the the signature jurat his seal of circuit court and the clerk and the the reciting him that the and sworn before affidavit subscribed to day. properly stated dis on a This court overruled the motion to All “clerical appeal. miss the of- these cases are instances those Cassidy example and case, supra, errors” of which the is all distinguishable which are under examination. from the case urges question III. Relator that “the as to what conclusively appealed by is or order is determined the contents entry copy appealed of the certified the record required by 1929.” Revised Statutes This record were, course, entry copy as well as the certified of it made County. point of the of Jackson This Clerk Circuit Court ex is against pressly upon ruled relator one of the cases which he main ly Cassidy Joseph, supra, relies. That is of St. case c. 152 W. l. which this court said: “It now is the settled doctrine this court that the order circuit court appeal, recitals, may whatever be its not does confer jurisdiction appellate the absence of a af- sufficient require- support It is to fill this appeal. fidavit to sucli evident that state, all re- substance, must the statute ment affidavit good comply in quires, attempt or must show on face such an its statutory requirements impose upon will the re- faith all the as with pre- making objections in time spondent burden of known his unnecessary expense held insufficient.” vent loss and it be should Relator makes other which are but variations o£ the contentions already points support In them he marshals considered. - writ already opinion eases the alternative noticed. We are of quashed peremptory writ denied. mandamus should be and the Westimes, (7(7., It is so ordered. concur. Cooley 0., PER foregoing opinion CURIAM: The Fitzsimmons, adopted sitting; Ellison, as Leediy,J., court. J.,P. Tipton, J., concur.
G. M. et al. 62 S. W. Appellants, W. F. al., et Duvall Hansen
(2d) 732. One, 24, 1933. Division June