81 Mo. 163 | Mo. | 1883
This is a prosecution instituted in a justice’s court, under section 1590, Revised Statutes, 1879, on the affidavit of a private citizen. On trial before the justice, the defendant was found guilty, and a fine of $1 assessed. He appealed to the circuit court. The circuit court, on motion of the State, dismissed the case for the want of jurisdiction, holding that the defendant had not perfected his appeal in time in the justice’s court. Erom this action of the circuit court, the defendant has appealed to this court.
I. By section 2058, Revised Statutes 1879, the defendant appealing is required to enter into a recognizance, the conditions of which may be summarized as follows: That he will appear in the appellate court; prosecute his appeal with diligence; if judgment be affirmed, or judgment be given against him, he will pay or abide by the same, nor depart the court without leave; if appeal be dismissed, he will pay the judgment, and render himself in execution. The recitals of the bond, in substance, are, that the defendant shall personally appear at the circuit court on the first day of the next term, etc., then and there to answer the charge, and shall pay and satisfy the said judgment and all costs which have accrued before the said justice, or which may accrue on said appeal, and otherwise abide the judgment of the said court, and shall not depart the court without leave, etc. This bond embraced the most important provisions of the statutory bond. It required the personal appearance of the accused in the appellate court, at the proper time, to answer the charge, and to pay and satisfy the judgment and all costs of the justice’s court, as well as any to accrue, and to abide the action of the circuit court and not depart without leave. Its omissions of the statutory conditions are, to pay the judgment of the justice if his appeal should be dismissed, and to render himself in execution if required. But, I think, the terms of his bond were comprehensive enough to require the payment of the
II. And I ain satisfied that the court should have permitted the defendant to give the additional bond tendered, rather than dismiss his appeal. The party was present in court. He submitted himself to the court’s jurisdiction; and on the suggestion of the county attorney, that his appeal bond was irregular, and before any dismissal therefor, he tendered a sufficient bond, good in form, and unobjectionable so far as the bondsmen were concerned. This met every reasonable end of the law. By section 3053, Revised Statutes 1879, it is provided, that: “No appeal allowed by a justice shall be dismissed for want of an affidavit or recognizance, or because the affidavit or recognizance made or given is defective or insufficient, if the appellant or some person for him will, before the motion to dismiss is determined, file in the appellate court the affidavit required, or enter into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such defect or omission, etc.” Under precisely such a statute, the supreme court of Indiana, in the State v. Richards, 77 Ind. 101, held
IN. Counsel have discussed, in their briefs, the question of the right of the circuit court, on its theory that it had not jurisdiction to try the case because the appeal was not perfected, to render a judgment against the defendant for costs. There is strong authority in favor of the proposition, that as the court had not acquired jurisdiction over the subject matter by the appeal, the only act it could perform, was to dismiss the case from its docket. McIver v, Wattles, 9 Wheat. 650; Strader v. Graham, 18 How. 602; Bradstreet v. Potter, 16 Pet. 318; Hornthall v. The Collector, 9 Wall. 560; Mitchell v. Kennedy, 1 Wis. 511; Pratt v. Brown, 4 Wis. 188; See Bartels v. Hoey, 3 Colorado 279, where the authorities are collected. But this question was passed on by this court in Ensworth v. Curd, 68 Mo. 235. Hough, J., in delivering the opinion of the court, said: “ When the court dismissed the plaintiff’s suit for want of jurisdiction, it had authority to render a judgment against
IV. It appears from this record, that the prosecution was founded upon the affidavit of a private citizen. Such proceedings, on information, must be filed by the prosecuting attorney. State v. Kelm, 79 Mo. 515. The justice of the peace, therefore, had no jurisdiction to try the offence, and his judgment was unauthorized.
The judgment of the circuit court is reversed, and the prosecution dismissed.