Lowry v. Phillips

Smith, J. — This was a suit commenced before a justice of the peace before whom the plaintiff had judgment from which the defendant appealed. The affidavit for the appeal was made in conformity to the requirements of section 3043, Revised Statutes, 1879. There was a trial de novo in the circuit court, both parties participating therein, which resulted in a verdict for the defendant, which on motion of plaintiff was subsequently set aside. Thereupon the defendant offered to file an affidavit for an appeal as required by section 6330 Revised Statutes, 1889. This offer was rejected by the court. The court thereafter on the oral motion of the [234] plaintiff dismissed the defendant’s appeal on the ground that it had not acquired jurisdiction of the case. The affidavit for the appeal was clearly defective, but since the plaintiff, appellee, voluntarily appeared in the circuit court and there proceeded to the trial of the merits without interposing any objection to the sufficiency of the affidavit or the defect of jurisdiction, this must be construed as an admission by him that he was subject to the jurisdiction of the court and as a waiver of a previous defect in the manner of taking the appeal. We must hold the court had by the appeal jurisdiction of the parties and the subject-matter of the suit. Pearson v. Gillett, 55 Mo. App. 312; Long v. Bolen Coal Co., 56 Mo. App. 605; Sampson v. Thompson, 56 Mo. App. —; Welch v. Railroad, 55 Mo. App. 599. While the filing of the amended affidavit was made unnecessary by the appearance of the plaintiff, still there could be no valid objection to the defendant’s right to file it, even at the time when he offered to do so. The defendant had the statutory right to file an amended affidavit at any time before a motion to dismiss had been determined. R. S., sec. 6340. It results from these considerations that the judgment of the circuit court dismissing the cause must be reversed and the cause remanded for further trial. All concur.