Greischar & Kepple v. Alexander

Smith, P. J. — The plaintiffs brought suit by attachment against defendant before a justice of the peace where they had judgment both on the plea in abatement and op the merits. Afterwards defendant filed an affidavit and bond for an appeal to the circuit court and in the affidavit it was stated that the appeal was “not made for vexation or delay but because affiant believes that appellant is injured by the judgment of the justice, and that this appeal is taken from the judgment rendered on the plea in abatement and in the caused7 In the circuit court the plaintiffs appeared for the purpose of filing their motion to dismiss the appeal which was upon the ground that the affidavit therefor was insufficient to give that court jurisdiction of the subject matter of the action or of the persons of the plaintiffs, which motion was overruled by the court, to which ruling the plaintiffs saved their exceptions. Later on the case was called for trial and the plaintiffs declining to make further appearance ■ therein it was dismissed for want of prosecution. Still later on during the term the plaintiffs filed a motion to set aside the judgment, etc., which being [59] overruled they tendered their bill of exceptions which was allowéd, signed, sealed and made part of the record. They bring the case here by appeal. Section 6330, Revised Statutes, provides what an affidavit for an appeal from a justice of the peace shall contain. It is there imperatively required that such affidavit shall, amongst other things, state whether “such appeal is from the merits or from an order or judgment taxing costs.” Neither these words nor their equivalents are to be found in the defendant’s affidavit. The statement of the affidavit that the appeal was “taken from the judgment rendered on the plea in abatement and in the cause,” does not meet the statutory requirement which is essential in every case, not otherwise specially provided for by statute when any person aggrieved by any judgment rendered by a justice of the peace from which it is desired to take an appeal. The statement of the affidavit shows no more than that the defendant sought to take an appeal from the judgment rendered on the plea in abatement in the cause. The employment of the copulative conjunction “and” in the italicised sentence of the affidavit just quoted, is grammatically superfluous and neither adds to nor subtracts from the plain meaning of the other words therein. The affidavit must be considered as if it wholly omitted the essential words required by the statute to make it complete. It being defective in the particular already stated the appellants had a right by motion to call on defendant to perfect it on pain of dismissal of his appeal and if he then refused, as was the ease, to file the required affidavit, (section 6340, Revised Statutes) it was the duty of the court to have dismissed such appeal. Spencer v. Beasley, 48 Mo. App. 97; Welsh v. Railroad, 55 Mo. App. 599. [60] It results that the judgment of the circuit court must he reversed and the cause remanded with directions to dismiss the appeal of the defendant. All concur.