Winer v. Maness

BLAND, P. J. The action is for the recovery of one hundred and sevénty-eight dollars and fourteen cents damages for the alleged wrongful conversion by defendant of certain personal property of the plaintiff’s, alleged to be of the value of one hundred and seventy-eight dollars and fourteen cents. The suit was commenced on the twenty-first day of May, [164] 1901, before John T. Haefner, a justice of the peace withiu and for the township of Joachim, in the county of Jefferson. Summons was issued, served and returned as shown by the transcript. the trial of the cause was set for June 6, 1901, on which day the plaintiff appeared but the defendant made default. Plaintiff submitted his evidence to the justice, who rendered judgment by default against defendant for one hundred and seventy-eight dollars and fourteen cents and costs. Witbin ten days thereafter the defendant appeared before the justice and filed bis affidavit and recognizance for an appeal to the circuit court. At the September term, 190Í, of the Jefferson Circuit Court, defendant filed his motion to dismiss the cause for want of jurisdiction, in this, “that the cause was commenced in Joachim township, and that one township intervenes between said Joachim township and the township in which defendant resides, and that the service of summons was, in point of fact, bad on defendant, not in Joachim township, but in the township where the defendant resided.” On the bearing of the motion the plaintiff admitted that it might be considered, for the purpose of the motion, that the summons had not been served on defendant in Joachim township, nor in an adjoining township thereto, but that it had been served on him in the county of Jefferson, and the defendant admitted that be had appeared before the justice and filed bis affidavit and bond for the purpose of taking the appeal. On this evidence the court sustained the motion and dismissed the plaintiff’s cause at bis cost. ' Plaintiff saved bis exceptions to the ruling of the court in sustaining the motion and dismissing the cause and in due time filed his bill of exceptions. The suit is one of a class over which justices of the peace have jurisdiction by the provisions of section 8885, Revised Statutes 1899, and the justice had jurisdiction of the subject-matter of the suit. the filing of an affidavit and the entering into a recognizance for an appeal from a judgment by default [165] rendered by a justice of the peace is an entrance of appearance by the defendant to the suit by force and effect of the statute concerning appeals from judgments of justices of the peace. Sec. 4060, R. S. 1899. In Witting v. Railroad, 101 Mo. 631; Schuchman v. Heath, 38 Mo. App. 280; Rice v. Railroad, 30 Mo. App. 110, it is ruled that the taking of an appeal waives all errors and imperfections in the service of process and is equivalent to a general appearance to the merits. Meyer v. Phoenix Ins. Co., decided by this court but not yet reported. The learned circuit judge committed error in sustaining the motion to dismiss the appeal, wherefore the judgment is reversed and the cause remanded with directions to the circuit court to set aside its order dismissing the appeal, reinstate the cause on its docket, and to overrule the motion. Barclay, and Goode, JJ., concur.