Clapper v. Bradshaw

BROADDUS, P. J. This is a suit on account for the sum of fifteen dollars and fifty cents commenced before W. 0. Underwood, justice of tbe peace. A change of venue was had to H. R. Yan Yoast, another justice of the county. On the 12th day of August, 1910, a trial was had and plaintiff obtained a verdict for the full amount of bis account, upon which the justice rendered judgment with costs. On the 20th day of August defendant filed an affidavit in the usual form for an appeal to the circuit court of the county. On the 16th day of September the justice granted the appeal as prayed, and on the 3d day of October filed his transcript of the cause with the clerk of the circuit court, accompanied with the papers in the case. At the November term of the circuit court plaintiff filed his motion to dismiss the appeal which was [588] taken np by tbe court during tbe term, evidence beard, and taken under advisement until tbe April term of tbe court when it' was sustained. From tbe action of tbe court in sustaining said motion defendant appealed to tbis court. Tbe grounds set forth in tbe motion to dismiss were, first: “That tbis court acquired no jurisdiction because defendant failed and refused to file a proper appeal bond as required by Revised Statutes of Missouri 1909, section 7568, with tbe justice of tbe peace before whom tbis cause was tried, and that no sufficient bond has ever been filed in said cause and approved by tbe justice. ’ ’ Second: £ £ That tbis court acquired no jurisdiction of tbis cause because tbe appeal was not granted within ten days from tbe daté of tbe judgment against defendant as required by section 7568, Revised Statutes of Missouri 1909,” etc. Before tbe motion to dismiss was submitted to tbe court a bond for appeal with evidence as to the solvency of tbe parties to tbe bond was tendered, which bond and evidence tbe court rejected. Section 7580, Revised Statutes 1909, provides that no appeal from tbe judgment of a justice shall be dismissed for want of an affidavit or recognizance, or because tbe affidavit or recognizance is defective or insufficient, if a proper affidavit or récognizance is made before tbe motion to dismiss tbe appeal is determined. Tbis section of tbe statute has been construed by tbe appellate courts of tbe state in many cases, among which are tbe following: Distilling Co. v. Kermis, 79 Mo. App. 111; Drake v. Gorrell, 127 Mo. App. 636; Gester v. McKinney, 47 Mo. App. 62; Devore v. Staeckler, 49 Mo. App. 547; Welsh v. Railroad, 55 Mo. App. 599; Moulder v. Anderson, 63 Mo. App. 34, and many other cases. In Distilling Co. v. Kermis, supra, tbe bond for appeal was filed with tbe justice on tbe day after tbe judgment was rendered, but was not approved by him until after tbe expiration of ten days. Tbe court held that [589] the failure of the justice to approve the bond could not deprive appellant of his statutory right of appeal. In Jester v. McKinney, supra, the affidavit and bond for appeal were filed with the justice within the time allowed by the statute, but the justice entered the order allowing the appeal after the expiration of such time. The sufficiency of the appeal was sustained. In Drake v. Gorrell, supra, the garnishee filed an affidavit and bond for appeal which the court held was sufficient to give the circuit court jurisdiction. In Devore v. Staeckler, supra, the justice’s docket failed to show that any affidavit or bond for appeal was filed, or that any appeal was allowed. Held, that the circuit court did not acquire jurisdiction. In Welsh v. Railroad, supra, the affidavit for appeal was defective. Held, that although the affidavit was defective the filing of the justice’s papers with the clerk was sufficient to confer jurisdiction. In Moulder v. Anderson, supra, it is held, that the circuit court never acquired jurisdiction, because no appeal was ever allowed, and no recognizance filed. Section 7568 provides that no appeal shall be allowed unless certain requisites are complied with, viz.: The appeal shall be taken within ten days after the judgment is rendered, but if the party is a non-resident, the appeal may be taken in twenty days after judgment; second, the applicant must, within the time prescribed, give his recognizance with security sufficient to secure the payment of the judgment and. costs of the appeal, etc. Section 7570 provides that no appeal shall be allowed unless the party applying therefor shall make affidavit containing certain statements. The obvious purpose of section 7580 was to prer vent the miscarriage of justice by reason of the liability of the parties litigant and the justices of the peace to fail to follow the strict provisions of said sections 7568 and 7570 providing for the manner of taking [590] appeals. And, if we construe section 7580 according to its letter, notwithstanding the provisions of sections 7568 and 7570 providing for the giving of a recognizance and the making of an affidavit before an appeal can be allowed, still, if such affidavit and bond are tendered before the cause is dismissed in the circuit court, such court acquires jurisdiction of the case by appeal. But, in our opinion, the statute does not by its terms nor can it by the most liberal construction, be construed as conferring jurisdiction on the circuit court, unless a bond and affidavit have been made and filed with the justice within the time provided for the taking of such appeal, or that an order of the justice granting such appeal has been made within such time. Notwithstanding its extreme liberality, there is nothing in the section which, by any rule of construction, can be made to mean that a mere order granting an appeal made after the time provided for the .taking of such appeal would have the effect of conferring jurisdiction on the circuit court. Had the justice, when the .affidavit in the cáse was filed with him, granted an appeal, that would have been sufficient under the statute to confer jurisdiction of the appeal, because it was granted within the time allowed by the statute, although no recognizance had been filed. It seems to us that it is essential that such appeals should be granted within the statutory period of ten days, and the statutory bond and affidavit filed within such time; or otherwise, it could not be known that a case was finally settled if a justice can grant an appeal within an indefinite time after the rendition of the judgment. In this case the justice could not have been compelled to grant an appeal because the statute was not followed by the filing of a recognizance and an affidavit, yet, if he had the power to grant the appeal at any time after the expiration of ten days from the date of the judgment, he could have postponed action and granted the appeal within one year there [591] after. Such a construction of the statute might lead to the most abused consequences. The judgment of the court dismissing the appeal is sustained. All concur.