Potts v. Nahm

REYNOLDS, P. J. On December 14,1908, plaintiff recovered judgment by default before John T. Sanders, Esq., a justice of the peace of the Ninth District of the city of St. Louis, on an account in the sum of $500. Defendant was a non-resident of the city of St. Louis, residing in St. Louis county, and under section 4060, R. S. 1899, he was allowed twenty days in which to take an appeal. On the 2nd of January, 1909, he filed his affidavit and bond, the latter being approved, and the appeal granted to the circuit court of the city of St. Louis. On the 20th of January, 1909, the following notice of appeal was served on plaintiff by the sheriff of the city of St. Louis: ‘ ‘ State of Missouri, City of St. Louis, ss. “In the Circuit Court, February term, 1909. “Thomas H. Potts, plaintiff, v. Albert M. Nalim, Defendant. — 566 — ‘‘To Thos. H. Potts: “You are hereby given notice that the deft, in the above entitled cause has taken an appeal from the judgment of John T. Sanders, Justice of the Peace of, for and in the Ninth District of the City of, St. Louis, in said County and State, from the judgment rendered against said deft, on the 14th day of January, 1908, in the Circuit Court of St. Louis City, Missouri. “Albert M. Nahm, “By J. C. KiskaddoN, his attorney.” This notice, with the return of the sheriff, was filed in the office of the clerk of the circuit court January 28, 1909. Afterwards, on April 6th and at the April term of the circuit court of the city of St. Louis, which was the second term after the rendition of the judgment, the plaintiff moved the court to affirm the judgment of the justice on the ground that the appeal was not allowed on the same day on which the judgment was rendered and that no notice of appeal had been served on the plaintiff or any agent or attorney of the plaintiff as is required by law. The court, on May 7th, sustained the motion to affirm the judgment of the justice and rendered judgment in favor of plaintiff and against his sureties on the appeal bond. The defendant at the time excepted to the action of the court in sustaining the motion and in affirming the judgment and at the same time orally asked the court to permit him to amend the notice by striking out of the body of it the word “January” and inserting in lieu thereof the word “December.” The court suggested that the defendant make a motion in writing, whereupon the defendant, on May 10th and during the same term, filed his motion to set aside the judgment of affirmance and reinstate the case and permit defendant to make the amendments aforesaid. The grounds set out in this motion are that it appears from the notice itself that the word “January,” in the body of the notice, is a mere clerical error, January being written in place of — 567 — December; that it appears that the notice “with the obvious clerical error aforesaid is sufficient to inform plaintiff from what judgment an appeal had been taken;” that it appears that the notice was served upon plaintiff and there is nothing to show that he was misled, deceived or injured by the error in the notice. The court overruled this motion, défendant excepting, defendant afterwards filing his bill of exceptions and perfecting his appeal to this court. Section 4075, Revised Statutes 1899, provides that if the appellant fails to give the notice of the appeal when the notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof or at his instance it shall be continued as a matter of course until the succeeding term at the costs of the appellant, “but no appeal shall be dismissed for the want of such notice.” Section 4076 provides that if the appellant fails to give the notice at least ten days before the second term of the appellate court after the appeal is taken, the judgment shall be affirmed or the appeal dismissed at the option of the appellee. There is no entry in the record before us of any transaction at the February term of the circuit court, the only entry prior to the April term being that on January 28,1909', notice of appeal was filed. In the case of Clay v. Turner, 135 Mo. App. 596, 116 S. W. 480, this court held that a notice of appeal was fatally defective in which the date of the rendition of the judgment was stated to have been August 12th, when in point of fact the judgment was rendered August 7th. The learned counsel for appellant in the case now before us, urges that this decision is erroneous and that the attention of this court was not called to the case of Holschen Coal Co. v. Mo. Pac. Ry. Co., 48 Mo. App. 578, and Collier v. Langan & Taylor Storage & Moving Co., 128 Mo. App. 113, 106 S. W. 598, claiming that if the attention of this court had been called to — 568 — those cases the decision in the Clay cas.e would have been different. It is true that there is nothing appearing in the opinion in the Clay case to show that these last two mentioned cases were before the court. The Clay decision, however, is founded upon the decisions in the cases of Hammond v. Kroff, 36 Mo. App. 118, and Cooper v. Northern Acc. Co., 117 Mo. App. 423, 93 S. W. 871, this court stating that the principle of the decisions in these cases is that as the statute (section 4074, R. S. 1899') “requires the notice to state that an appeal has been taken from a judgment ‘therein specified,’ to mention a judgment of another date other than the true one is misleading.” It is further said by this court, Judge Goode delivering the opinion (1. c. 597), that late cases have somewhat relaxed the stringency of the requirements in notices of appeals from justices of the peace, but that he knows of no precedent which overrules or is inconsistent with the decisions cited supra upon the point in controversy. Referring to the Holschen Coal Company case, it will he noticed that this court, in an opinion bv Judge Biggs, referring to several cases in which the sufficiency of the notice of appeal had been considered, and referring to Hammond v. Kroff, supra, as holding that the notice of appeal was insufficient “because it described the judgment as of date June 21,1887, whereas the judgment from which the appeal was taken was rendered on June 4, 1887,” refers to this variance in date as actually misdescribing the judgment; certainly nothing is said in the decision that lends color to the claim that the mistake in dates is merely clerical or of no importance. In the Collier case, Judge Goode specifically calls attention to the fact that the judgment was referred to in the notice as having been rendered July 26th instead of August 2.6th. Referring to that he says that the point would he well taken if the notice was not otherwise sufficient to apprise the plaintiff, beyond possibility of doubt, in what cause the appeal had been — 569 — taken and to what court. He calls attention to the fact that the title of the case is correctly stated, the justice of the peace before whom it had pended and who had given the judgment and the amount of the judgment and that the cause was then pending in room No. 2 in the circuit court of the city of St. Louis and was known as Case No. 43202a of said court, were all in the notice and that the only error in the notice was the misstatement of the date of the judgment. Examining the notice in the case at bar, we are compelled to say that it is fatally lacking in the elements which this court, in the Collier case, pointed out as present in the notice then before them, as saving that notice. The notice in the case at bar sets out the venue and that the court in which the appeal is pending is the circuit court of the city of St. Louis, February term, 1909; it gives the name of the plaintiff and of the defendant and is addressed to the plaintiff, and it gives the name of the justice who rendered the judgment, but it does not give the amount of the judgment nor anything by which it can be identified other than by the names of the parties and, as noticed, the date of the judgment is given as the 14th day of January, 1908, and instead of stating that the appeal is to the circuit court of the city of St. Louis it has the very inaccurate statement that the defendant “in the above entitled cause has taken an appeal from the judgment of the justice,” naming him, “from the judgment rendered against said deft, on the 14th day of January, 1908, in the circuit court of St. Louis City, Missouri.” On all the authorities in which the matter of sufficiency of notice has been discussed, we are compelled to hold and do hold that this notice is insufficient and is no such notice as required by the statute. Appeal is made to the Statute of Jeofails, Revised Statute 1899, section 660. It has been held that this section is remedial and is to be given a liberal construction. But it has been held not to authorize an amend — 570 — ment to a petition after judgment so as thereby to set out a new cause of action. [Barnes v. Prewitt, 28 Mo. App. 163.] And it is also held that amendments to judgments are to be made, not in derogation, but in support of the judgment. [Stewart v. Stringer, 45 Mo. 113.] Amendments to returns are not only authorized by statute but are frequently sustained by decisions of the courts, — as see Phillips et al. v. Evans et al., 64 Mo. 1, 1. c. 23. So are amendments allowed to correct mistakes in names of parties “or a mistake in any other respect, or by rectifying defects or imperfections in matters of form, and such judgment shall not be reversed or annulled therefor.” It does not seem to us that broad as is this section of the statute and as liberally as it has been construed, it authorizes an amendment of a paper in a cause so as to make that a notice which without amendment is no notice. Moreover, .the offer to amend came after judgment and its effect, if granted, would have been not to uphold but overturn the judgment. The judgment of the circuit court is affirmed. All concur.