71 Mo. App. 332 | Mo. Ct. App. | 1897
Lead Opinion
This is an action of forcible entry and detainer for the recovery of certain premises in Kansas City. The cause was brought before a justice of the peace, where on trial plaintiffs recovered. Defendants
By t-he use of the above italicized words, “in substance,” it is contended that the complaint was fatally defective and conferred no jurisdiction, either on the justice of the peace before whom the case originated or the circuit court to which the same was appealed. This contention is based on a ruling of this court in Reilly v. Powell, 34 Mo. App. 431, where a similar affidavit was held to be insufficient. In Tegler v. Mitchell, 46 Mo. App. 349, a like affidavit, though said to be defective, was yet permitted to be amended in the circuit court, and the latter case was followed and approved fin Dean v. Trax, 67 Mo. App. 517. This authority to amend we thought given by the terms of section 5159 found in the chapter of the revised statutes relating to forcible entry and detainer.
If then the complaint under discussion, though defective, was yet amendable in the circuit court, we can not under the circumstances of the case treat it as an absolute nullity. “Judicial proceedings which are amendable are notvoid. Hardin v. Lee, 51 Mo. 241, and
Rehearing
ON MOTION NOE EEHEAEING.
Much stress is laid on two points made by defendant as á reason why a rehearing should be granted. One is that the court in Tegler v. Mitchell, 46 Mo. App. 349, cited section 5153, Revised Statutes 1889, as authority for allowing an -amended affidavit. This was a mere inadvertence of no importance. The section intended was 5159. Dean v. Trax, 67 Mo. App. 517.
The other point is that we are in conflict with Fletcher v. Keyte, 66 Mo. 285. The distinction between that case and this is plain. In that ease it was held that an affidavit in forcible entry and detainer was jurisdictional and that as there was no affidavit to the complaint the justice had no jurisdiction. In this ease there was an affidavit. It was merely defective in form, and this defect we held in the foregoing cases could be amended under section 5159 of the forcible entry and detainer statute. If there had been no affidavit, then the decision of the supreme court in