VanScoyoc v. Wolfe

G-ill, J. This is a suit originating in a justice’s court where plaintiff had judgment and defendant appealed to the circuit court. In defendant’s affidavit for appeal filed with the justice of the peace, it was not stated whether the appeal was from the merits or from an order or judgment taxing costs. In the circuit court the plaintiff filed a motion to dismiss defendant’s appeal because of the insufficiency of the affidavit. The court overruled the motion; plaintiff failing to appear any further in the action, judgment was [432] entered in defendant's favor, and plaintiff appealed to this court. Unquestionably the affidavit filed with the justice was defective in that it failed to state whether the appeal was taken from a judgment on the merits or from the drder taxing costs. While this defect did not altogether deprive the circuit court of jurisdiction, yet when attention was called to the insufficiency of the affidavit by motion of the opposite party, the defendant was bound to amend before the motion was determined or his appeal should have been dismissed. It has been several times so ruled by this court. Spencer v. Beasley, 48 Mo. App. 97; Welsh v. R'y, 55 Mo. App. 599; Greischar v. Alexander, 56 Mo. App. 56. In this case the defendant, who was the appellant in the circuit court, did not offer to amend his affidavit. His appeal then should have been dismissed. It follows that the judgment of the circuit court must be reversed and the cause remanded with directions to dismiss defendant’s appeal. It is so ordered. All concur.