This action was begun before a jus- ' tice of the peace. Plaintiff lost the case in that court, and in appealing to the circuit court he filed an affidavit with the justice which omitted to state whether the appeal was from the merits or matter of costs. A motion was made by defendant in the circuit court to-dismiss the appeal for such omission. Before the-motion to dismiss was passed upon, plaintiff offered to. file a perfect affidavit, but the motion was nevertheless, sustained, and plaintiff comes here.
The trial court doubtless sustained such motion,, notwithstanding plaintiff offered a perfected or amended, affidavit on the authority of Whitehead v. Cole, 49 Mo. App. 426, wherein it was held that the circuit court, acquired no jurisdiction of the subject-matter when the-affidavit for appeal was defective in the particular complained of in this case. In the case of Welch v. Railroad, decided at this term, the position taken in the-Whitehead case was disavowed. The judgment in this, case will, therefore, be reversed and the cause remanded..