62 S.W.2d 473 | Mo. | 1933
Lead Opinion
The issue is whether the Kansas City Court of Appeals had jurisdiction of a certain cause in which Chester T. Woodcock, one of the respondents here, was plaintiff and respondent there, and Kansas City Stock Yards Company, relator here, was defendant and appellant there. Judgment having been rendered in the Jackson County Circuit Court in the sum of $300 against relator, Kansas City Stock Yards Company, there was filed on behalf of that company in the trial court a certain application and affidavit for appeal, the *55 jurisdictional validity and sufficiency of which is the precise question before us. The application and affidavit for appeal are as follows:
"(Signature of Attorneys) "Attorneys for Defendant.
"(Signature of Affiant and jurat of Notary.)"
It is conceded that mandamus is the proper remedy to compel an inferior court to exercise jurisdiction of a cause properly before it. [State ex rel. Kansas City Light and Power Company v. Trimble et al.,
[1] I. It has been ruled often that the right of appeal is purely statutory. Section 1018 (2 Mo. Stat. Ann. 1929, p. 1286), specifies the judgments and orders from which an appeal may be taken. The parts of that statute, pertinent to this case, are: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, . . . or from any final judgment in the case." Section 1020 provides that "no such appeal (that is an appeal taken under authority of Section 1018) shall be allowed unless: First, it be made during the term at which the judgment or decision appealed from was rendered; and, second, the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court." These statutes define and limit the right of appeal and fix the conditions. It will be observed that the statutes do not give to an aggrieved party a right of appeal from an order overruling a motion for a new trial or in arrest of judgment but do give that right of appeal from an *56 order sustaining such a motion. [2] It will also be observed that a written application for an order of allowance of appeal is not among the conditions but that an affidavit in a stated formula is a condition. The attorney for relator, by his affidavit for appeal, took an appeal from "the ruling and decision of this court overruling defendant's motion for a new trial and motion in arrest of judgment," which was an appeal not authorized by Section 1018. And by way of meeting the condition fixed by Section 1020, for the allowance of the appeal he made and caused to be filed in the trial court an affidavit which does not conform to the statute. In this state of the case he did not in fact take an appeal authorized by law. The Kansas City Court of Appeals did not obtain jurisdiction of the cause, and that court rightly dismissed the appeal. This conclusion is in harmony with prior decisions of this court.
In the case of Bonfils v. Martin's Food Service Co.,
In the case of Arcadia Timber Co. v. Evans,
II. Relator in support of the issuance of a peremptory writ cites cases which are not in point. In the case of Kennedy v. Bowling,
Cassidy v. City of St. Joseph,
The Kansas City Court of Appeals, in its opinion supporting its order of dismissal of relator's appeal properly distinguished several Supreme Court cases which relator urges upon us as authority for a peremptory writ. In the St. Louis Bridge
Construction Co. v. The Memphis, Carthage Northwestern Co.,
[3] III. Relator urges that "the question as to what judgment or order is appealed from is conclusively determined by the contents of the certified copy of the record entry of the judgment appealed from required by Section 1028, Revised Statutes 1929." This record entry as well as the certified copy of it were, of course, made by the Clerk of the Circuit Court of Jackson County. This point is expressly ruled against relator in one of the cases upon which he mainly relies. That case is Cassidy v. City of St. Joseph, supra,
Relator makes other contentions which are but variations of the points already considered. In support of them he marshals the cases already noticed. We are of opinion that the alternative writ of mandamus should be quashed and the peremptory writ denied.
It is so ordered. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by FITZSIMMONS, C., is adopted as the opinion of the court. Leedy, J., not sitting; Ellison, P.J., and Tipton, J., concur.