Elsea v. Bass

8 Citing cases

  1. Bank of Thayer v. Klump Transfer Co.

    240 Mo. App. 776 (Mo. Ct. App. 1949)   Cited 20 times

    The Court was without jurisdiction to issue the writ, lack of jurisdiction cannot be waived. Sec. 1788, R.S. Mo., 1939; Elsea v. Bass, 229 Mo. App. 250, 77 S.W.2d 164; Clauson v. Tipton, (Mo. App.) 147 S.W.2d 148; First National Bank v. Griffith, 192 Mo. App. 443, 182 S.W. 805; Callahan v. Huhlman, 339 Mo. 634, 98 S.W.2d 704. (2) Court erred admitting evidence, for purpose of showing proper place for recording chattel mortgage, the testimony of various witnesses as to prior statements of the mortgagor, and further erred in admitting for such purpose recitals as to mortgagor's residence which appeared in the note and chattel mortgage, such evidence being hearsay and not the best evidence. Payne v. Payne, 57 Mo. App. 130; Clay v. Walker, (Mo. App.) 6 S.W.2d 961; 14 C.J.S., Sec. 151, p. 757.

  2. Land Clearance for Redev. Auth. v. Zitko

    386 S.W.2d 69 (Mo. 1965)   Cited 37 times
    In Land Clearance for Redevelopment Auth. v. Zitko, 386 S.W.2d 69, 78 (Mo. banc 1965), relative to a jurat accompanying an affidavit attached to an application for change of judge, the court noted, "[a] jurat need only consist of a statement `sworn to and subscribed' before the notary public...". See also Order of Aztecs v. Noble, 174 S.W. 623 (Tex.Civ.App. 1915), holding that omission of the date in a jurat does not render an otherwise properly verified pleading fatally defective.

    Decisions of the appellate courts of this state have uniformly held that the failure to sign an affidavit renders the instrument wholly ineffective. Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988, 989; Elsea v. Bass, 229 Mo.App. 250, 77 S.W.2d 164, 165-166; Hargadine v. Van Horn, 72 Mo. 370; Davison v. Arne, 348 Mo. 790, 155 S.W.2d 155. The Hargadine case was an action in ejectment in which an unsigned affidavit for an attachment was held to be a nullity.

  3. Davison v. Arne

    155 S.W.2d 155 (Mo. 1941)   Cited 15 times

    We cannot hold that this is a compliance with this statutory requirement of an affidavit. [See Hargadine v. Van Horn, 72 Mo. 370; Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988; State v. Privitt, 327 Mo. 1194, 39 S.W.2d 755; Elsea v. Bass, 229 Mo. App. 250, 77 S.W.2d 164.] Strict compliance with statutory provisions for constructive service is necessary to meet the requirements of due process, and to give the court authority to enter a valid judgment. [Harness v. Cravens, 126 Mo. 233, 28 S.W. 971; Kelly v. Murdagh, 184 Mo. 377, 83 S.W. 437; Kunzi v. Hickman, 243 Mo. 103, 147 S.W. 1002; Johns v. Hargrove Ruth Lbr. Co. (Mo.), 219 S.W. 967; Dent v. Investors' Security Assn., 300 Mo. 552, 254 S.W. 1080; Haake v. Union Bank Trust Co. (Mo. App.), 54 S.W.2d 459.

  4. Jensen v. Wilson Township

    145 S.W.2d 372 (Mo. 1940)   Cited 23 times

    State ex rel. Daniel v. Torrey, 33 S.W.2d 130; Missouri Twp., Chariton County, v. Farmers Bank, 42 S.W.2d 353; 63 C.J., p. 211, sec. 225; 15 C.J., p. 598, sec. 308; R.S. 1929, sec. 12293. (3) As to the affidavit required by Section 12301 being necessary to give the township board power and jurisdiction to proceed with the auditing and allowance of claims, I submit that the following cases show that where statutory affidavits are provided for in proceedings in courts, they are very generally held to be jurisdictional, even where the statutes do not say that the courts may not proceed without them. Feurt v. Lotspeich, 273 S.W. 240; Bick v. Tanzey, 181 Mo. 515; Hargadine v. Van Horn, 72 Mo. 370; Elsea v. Bass, 77 S.W.2d 164. DOUGLAS, J.

  5. Cook v. Parkland Health Ctr.

    674 S.W.3d 65 (Mo. Ct. App. 2023)   Cited 2 times
    Holding that permitting addition of signature to a section 538.225 affidavit after the affidavit was filed with petition in medical negligence case "would directly conflict with the legislature's clearly stated intent"

    Id.; see, e.g., Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988, 989 (1917) (defining affidavit as "a written statement or declaration, sworn to before some officer authorized by law to administer oaths, and signed at the end by the affiant " ) (emphasis added); State ex rel. Knapp v. Cowan, 88 S.W.2d 424, 425 (Mo. App. W.D. 1935) ("[I]n a divorce proceeding an unsigned affidavit is no affidavit even though attested by notary or other proper authority.") (emphasis added); State v. Hodges, 829 S.W.2d 604, 609 (Mo. App. E.D. 1992) (citing Zitko, 386 S.W.2d at 69 ; Elsea v. Bass, 77 S.W.2d 164 (Mo. App. K.C. 1934) ) ("It has been held that this unusual defect—the acknowledgement of the signature where no signature appears—invalidates affidavits.").

  6. State v. Hodges

    829 S.W.2d 604 (Mo. Ct. App. 1992)   Cited 10 times

    It has been held that this unusual defect — the acknowledgement of the signature where no signature appears — invalidates affidavits. See e.g., Land Clearance for Redevelopment Auth. of City of St. Louis v. Zitko, 386 S.W.2d 69 (Mo. 1964); Elsea v. Bass, 77 S.W.2d 164 (Mo.App. 1934). However, Rule 29.15(e) also requires that counsel,

  7. Garzee v. Sauro

    623 S.W.2d 579 (Mo. Ct. App. 1981)   Cited 3 times

    As noted, the "affidavit" was not signed by the affiant, nor was it acknowledged by one authorized to administer oaths. Therefore, it is no affidavit of fact which was required to be controverted by appellants under Rule 74.04. As to an unsigned affidavit being no affidavit, see Elsea v. Bass, 229 Mo.App. 250, 77 S.W.2d 164, 166 (1934); Royal Loan Co. of St. Louis v. Darr, 220 S.W.2d 787, 789[2, 3] (Mo.App. 1949), and cases cited. The capacity in which Richard Dale Moore, Jr., signed the document does not appear. Note that the statute requires the collector to mail the brief notice of the filing of the suit to the persons named in the petition as being the last known persons to whom tax bills were last billed or charged to the addresses of said persons upon the records of the collector.

  8. Brown Motor Sales Co. v. Daugherty

    107 S.W.2d 179 (Mo. Ct. App. 1937)   Cited 1 times

    J. Grant Frye and H. Howard Frye for appellant. (1) Elsea v. Base, 77 S.W.2d 164; White v. Grace, 192 Mo. App. 610, 184 S.W. 947; Turner v. Simon, 31 Mo. App. 582; Johnson v. Fischer, 56 Mo. App. 552; Cf. State ex rel. Knapp v. Cowan, 88 S.W.2d 424. (2) Eisenberg v. Nelson, 247 S.W. 244; Proctor v. Home Investment Co., 221 Mo. App. 577, 284 S.W. 156; Fitzwilliams v. Northwestern Trust Co., 10 S.W.2d 334. (3) McCafferty v. Clay, 18 S.W.2d 569; Calmon v. Cox, 296 S.W. 845; Poplin v. Brown, 200 Mo. App. 255, 205 S.W. 411. (4) Secs. 849, 2218, 2286, 2291, R.S. Mo. 1929. Frank A. Lowry for respondent.