
    L. G. VanScoyoc, Appellant, v. A. K. Wolfe, Respondent.
    Kansas City Court of Appeals,
    January 24, 1898.
    Justice’s Courts: appeal: affidavit: merits v. cost. In an appeal from a justice’s court the affidavit should state whether the appeal is upon the merits or the cost and motion will lie in the circuit court to dismiss for failure to do so unless amendment be made before the determination of such motion.
    
      Appeal from the Jaclcson Circuit Court. — Hon. E. P. Gates, Judge.
    Reversed and remanded (with directions).
    
    
      Mes'&rvey, Pierce & Oermcm for appellant.
    (1) By the provisions of the statute it is imperatively required that an affidavit from the justice of the peace shall state, among other things, whether “such appeal is from the merits or from an order or judgment taxing costs.” R. S. 1889, sec. 6330; Greischar v. Alexander, 56 Mo. App. 56. (2) The affidavit being defective, plaintiff had a right by motion to call on defendant to perfect the affidavit, and defendant failing to correct said affidavit, it was the duty of the court to have dismissed such appeal. R. S. 1889, sec. 6340; Spencer v. Beasley, 48 Mo. App. 97; Welsh v. B. B., 55 Mo. App. 599.
    
      Bwrall & Dwrall for respondent.
    (1) By the provisions of the statute, upon the return of the justice being filed in the clerk’s office the court shall be possessed of the cause and shall proceed to hear, try and determine the same anew without regarding any error, defect or other imperfection in the original summons or the service thereof, or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause. R. S. 1889,.sec. 6339; Musgrove v. Mott, 90 Mo. 107. (2) In the case at bar the justice filed transcript according to section 6337, Revised Statutes of Missouri 1889, which conferred jurisdiction upon the circuit court. Moulder & Simpson v. Anderson, 63 Mo. App. 39.
   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 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.  