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3 Mo. 348

Myers v. Woolfolk

Supreme Court of Missouri

Decided April 15, 1834

Supreme Court of Missouri · decided 1834-04-15

<p>1. An affidavit made by an appellant in a Justice’s Court in these words, viz: “That he did not appeal, but because he was injured by the judgment of the Justice,” is good in substance.</p> <p>2. In the proceedings of Justices’ Courts, substance and not form is regarded.</p> <p>3. A warrant was issued under the 7th section of the act regulating Jusliees’ Courts, and served, not by arresting the body, but by reading as in case of an ordinary summons, and on the non-appearance of the defendant a judgment by default was rendered against him. Held, that under such service the defendant might appear and defend : that he had all the benefit of the process the law contemplated: that the arrest of the body is designed for the benefit of the plaintiff, which he may waive ; and that if the defendant, after the judgment by default, take the cause to the Circuit Court, he is precluded from any objections to the regularity of the proceedings, the law requiring that on appeals from Justices’Courts, a trial de novo shall he had in the Circuit Court on the merits, without regard to the irregularities and informalities of the Justice.</p> <p>4. An affidavit is essential to give to the Circuit Court jurisdiction of an appeal from a Justices’ Court.</p> <p>6. Where it appears that there is an appeal from a Justices’ Court, regularly in the Circuit Court, the Court must try it, unless there was no legal cause before the Justice.</p>

Cited by 2 later decisions — most recently June 1894

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1834-04-15

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M’Girk, C. J.,

¶1delivered the opinion of the Court.

¶2This was an action commenced by Myers v. Woolfolk before a Justice of the Peace. The plaintiff, upon affidavit, obtained a warrant under the provisions of the 7th section of an “Act establishing Justices’ Courts, and regulating the collection of small debts,” Revised Code, p. 474. The Constable instead of arresting the defendant, and bringing him forthwith before the Justice, read the wairant to the defendant in the mode pointed out for serving a summons, and made his return of service as directed in the case of a summons, the defendant having failed to appear, on the return of the warrant, judgment by default was entered up against him. Five days after the judgment, the defendant moved for a new trial, which was refused; and four days thereafter he prayed an appeal, which was granted. In taking his appeal to the Circuit Court, the defendant instead of following the form of affidavit given in the statute, made oath “ that he did not appeal, but because he was aggrieved by the judgment of the Justice.” In the Circuit Court, Myers moved to dismiss the appeal, for the insufficiency of the affidavit, and Woolfolk moved to set aside the judgment of the Justice and to dismiss the appeal, because there was no sufficient service of the warrant, and because judgment by default was rendered against the defendant by the Justice before he had jurisdiction of said defendant. The Circuit Court reversed the judgment of the Justice and dismissed the appeal, thereby indirectly overruling the objection taken to the sufficiency of the affidavit. The opinion of the Circuit Court in sustaining the motions made by Woolfolk, and in overruling those *247made by Myers, was excepted to, and its judgment thereon appealed from to this Court.

¶3For the plaintiff in error it is contended by Mr. Porter, that the Circuit Court erred,

¶4First. In not dismissing the appeal for the insufficiency of the affidavit; and

¶5Second. In reversing the judgment of the Justice for want of sufficient service of the warrant, and dismissing the cause.

¶6The form given in the statute is clear and concise, and it is certainly best to adhere to it; we think, however, the affidavit is good in substance, and in proceedings before Justices of the Peace, substance only and not form is to be regarded. There is, therefore, no error in the judgment of the Circuit Court on-this point.

¶7On the second point we hold the law is with Myers. A warrant or capias is intended by tire law to effect two objects, the first is to give the party notice of the suit, so that he may not have his right adjudicated on, without having an opportunity to defend himself; the second object is, that his body may be secured by being kept in custody or by giving bail to answer the plaintiff’s execution, if he shall recover judgment ; this latter benefit is one entirely for the benefit of the plaintiff. The defendant had the benefit of the process so far as the writ was intended for his benefit. He might well under this service have claimed the right to appear and defend himself. If he did not do so, he ought not now to be allowed to say he never had an opportunity to defend or to be heard. When he brought the cause to the Circuit Court he could not then complain of the want pf an opportunity to defend. The law requires that there shall be a trial da novo on the merits, in the Circuit Court when an appeal conies there, disregarding all irregularity and informality which took place before the Justice. See the act of the General Assembly of 1831 on this subject, which says (sess. act 48, section 3) that when an ajipeal shall be taken from the judgment of a Justice of the Peace to the Circuit Court, no objections as to the proceedings of such Justice shall be valid, but the Court shall proceed to try such cause on its merits.

¶8If in this case there had been no affidavit, there would not be any appeal lawfully In Court, that being essential to constitute the appeal.

¶9Rut when the appeal once is found to exist in Court, the Court must try it, unless indeed there should be a case where no legal cause was ever before the Justice or where the process did not run in the name of the State. For these reasons we are of opinion the judgment of the Court below is to be reversed. The cause is remanded with instructions to that Court to reinstate the case and proceed to trial.

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