92 Mo. App. 231 | Mo. Ct. App. | 1902
This is an action which was begun before a justice of the peace, from whence it was removed by appeal to the circuit court where there was a judgment of dismissal for want of prosecution, from which plaintiff has appealed.
If the circuit court had jurisdiction of the action, and the plaintiff failed to prosecute the same, then the judgment must stand; otherwise it must be reversed. Whether the court had jurisdiction or not depends upon whether or not there was a statutory appeal granted, and if so, whether or not the usee was served with notice thereof in the manner required by the statute, or, if not, then whether there was a general appearance by her.
Recurring to the meager, inartistic and bunglinglv-ar-ranged abstract of the record and it will there be seen that the transcript of the entries on the justice’s docket and the papers accompanying the same, as filed in the first instance with the clerk of the circuit court, do not show that an affidavit and bond for an appeal was deposited or filed with the justice, nor that an appeal was granted by him, or that such affidavit and bond were among the papers relating to the case, which were filed with the clerk, and it is, therefore, quite apparent that so far there is nothing showing that an appeal was granted. But on a further recurrence to the record it will be seen that at the second term of the circuit court, after the judgment of the justice had been .given, the court, no doubt, discovering a seeming imperfection in the said transcript, sua sponie, made an order granting leave to the justice to file an amended transcript- on or before a day therein specified. The justice, within the time required, did not file an amended transcript, but amended that filed by him in the first instance by writing therein the recital that “July 30, 1900, Adelbert Hammons and W. C. Hammons file their affidavit and bond for an appeal. Bond approved, appeal granted.”
It thus appears that the Hammonds who are the defend
Tbe record disclos'es an affidavit and bond for appeal, but just when these were lodged with tbe clerk of tbe circuit court, does not anywhere distinctly appear. Tbe title of tbe case in which tbe affidavit for tbe appeal was filed, as appears from tbe face thereof, was
Hattie E. Moxley, Plaintiff. vs. Adelbert Hammond and W. C. Hammond, Defendants.
Tbe affidavit was subscribed and sworn to before tbe justice on July 27, 1900. And it is thus made to appear that tbe title of tbe cause in which tbe affidavit for tbe appeal was filed was quite different from that in this case, and not only this, but tbe affidavit referred to in tbe order granting tbe appeal was dated three days later than that in the record. '
Tbe judgment referred to in tbe appeal bond was rendered by said justice in a certain cause wherein Hattie E. Moxley was plaintiff and tbe present defendants were tbe defendants therein. This bond was approved on July 27, 1900, three days before that referred to in tbe order granting tbe appeal was filed. And so it appears that tbe name of tbe party who was plaintiff in tbe cause in which tbe affidavit and bond for tbe appeal were made, varied from that of plaintiff in this case, and that tbe name of tbe plaintiff who obtained tbe judgment from which tbe appeal was taken, as shown by tbe recitals in tbe appeal bond, was not tbe same as that of tbe plaintiff in this case. Tbe name of tbe defendants who made tbe affidavit and entered into the bond for tbe appeal, as appears from the amended transcript, was not that of tbe defendants in this case. Tbe bond was not that required by tbe statute-(section 6323, Revised Statutes 1889), and is insufficient to-
The affidavit and bond referred to in the order granting the appeal are not found in the, record before us. The only affidavit and bond therein disclosed is essentially different from that referred to in the order granting the appeal. It appears from an inspection of the entire record' that this case is one where an appeal was granted without the affidavit and bond required by law, and which were indispensably necessary to authorize the granting of it. It appearing from the record that the order granting the appeal was unauthorized, it must therefore be held to have been ineffectual to confer jurisdiction on the circuit court. It may be that the defendants could have supplied this fatal omission in the circuit court by there filing the proper affidavit and bond, and thereby conferred jurisdiction, but this they did not do. The case now before us would not have been different if the defendants had filed no affidavit and bond whatever. In such case no one would contend that the order of the justice granting the appeal would be effectual to confer jurisdiction.
But if we are in error in reaching this conclusion, and the appeal was properly granted, still the. jurisdiction would still be wanting unless, as has been already stated, the statutory notice of the appeal was given, or, unless there was a general appearance, of which there is no pretense. It appears the notice was given in a cause entitled “State ex rel. Hattie Moxley against Adelbert Hammond et al.” The latín words “et alium” signify “another or different party” and they are sometimes used for convenience in the abbreviated form “et al.” in entitling causes in court dockets, backing pleadings and other legal papers filed, and the like. The notice, then, was given in a case differently entitled from this. There is nothing in the notice indicating who the other defendant besides Adelbert Ham
The judgment will accordingly be reversed.
