Opinion
Opinion filed May 1, 1928.
1. — Justices of the Peace — Docket — Entries Required By Law Import Verity — May Be Attacked Collaterally for Fraud, Accident or Mistake. When an entry which is required by law to be made in the docket of a justice of the peace is regularly entered, it imports verity, and is the only evidence as to the fact covered by such entry, and such entry cannot be collaterally attacked, except for fraud, accident, or mistake.
2. — Same — Appeals — Motion to Dismiss — Fraudulent Docket Entry as to Date of Appeal — Power of Court to Determine. Where, on appeal from a justice court to the circuit court, defendant filed his motion to dismiss the appeal, and in his motion charged that the entry, made by the justice in his docket as required by section 2727, Revised Statutes 1919, showing the appeal as being taken two days after the trial was had and judgment rendered, was fraudulently entered by said justice, held the court had a right to hear testimony and determine whether or not fraud had been perpetrated as alleged in the motion.
3. — Appellate Practice — Motion to Dismiss — Evidence — Appeals — Motion for New Trial — Necessary to Secure Review. On appeal from an order dismissing an appeal from a justice court on the ground that the justice of the peace had fraudulently dated said appeal as having been allowed by him two days after trial held that the motion to dismiss the appeal from the justice court being dependent solely upon facts, it was necessary to preserve the court's ruling upon the questions raised by the testimony by a motion for a new trial in order to secure a review.
4. — Same — Same — Same — Same — No Testimony — Presumption. The appellate court must presume, in the absence of testimony, that it supported the finding and judgment of the trial court dismissing an appeal from the justice court on the ground that the appeal was not timely taken.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Jones, Hocker, Sullivan Angert for appellant.
(1) Appeals from the justice court are perfected and valid upon a showing of either of the following: (a) That a bond and affidavit were filed by the appellant with the justice within the time provided for the taking of the appeal, or (b) an order was made by the justice within such time, allowing the appeal, even in the absence of such affidavit and bond. Revised Statutes 1919, secs. 2891, 2897; Ford v. Gray, 131 Mo. App. 240; Williams v. Kirby, 169 Mo. 622; Hartzfeld v. Taylor, 207 Mo. 236; Clapper v. Bradshaw, 163 Mo. App. 587; Drake v. Gorrell, 127 Mo. App. 638; Welsh v. Railroad, 55 Mo. App. 604; R.S. 1919, sec. 2903; Rothman, etc., Co. v. Kermis, 79 Mo. App. 111; Evans v. Automobile Co., 121 Mo. App. 272; Woodward v. Redden, 135 Mo. App. 541; Donohue v. Surety Ins. Co., 281 Mo. 276; Chas. Wolff Packing Co. v. Walker, 285 S.W. 795. (2) Independent of all other questions on this appeal, the transcript of the justice, being regular on its face, cannot be impeached collaterally by verbal testimony, and for that reason alone the motion to dismiss should have been overruled. Hartzfeld v. Taylor, 207 Mo. 236; Karnes v. Alexander, 92 Mo. 660; School Dist. v. Chappel, 155 Mo. App. 498; State v. Cass County, 137 Mo. App. 698; Bingham v. Kollman, 256 Mo. 573; Noeglin v. Edwards, 228 S.W. 764. A justice court nor a circuit court on appeal from a justice court can exercise no equitable jurisdiction. The record of the justice could have been avoided only in equity in a proceeding brought for that purpose. Caffery v. Mining Co., 95 Mo. App. 174; Townsend v. Alewel, 202 S.W. 447; Dowden v. Mfg. Co., 199 Mo. App. 657; State ex rel. v. Taylor, 210 Mo. App. 195; Pecke Bros. Com. Co. v. Sandstone Co-op. Co., 195 Mo. App. 417. (3) The transcript of the justice is regular on its face and shows that affidavit and appeal bond were duly filed within ten days, that the appeal was allowed within ten days and that the cause was regularly transferred to the circuit court. This record imports verity and cannot be impeached by verbal testimony in a collateral proceeding. 34 C.J. 517-518; Jeffries v. Wright, 51 Mo. 215; Myers v. Miller, 55 Mo. App. 338; Lingo v. Burford, 112 Mo. 149; Givens v. Burton, 183 S.W. 617. Such a record cannot be attacked collaterally even for fraud. Sisk v. Williams, 305 Mo. 328; Kaufman v. Realty Co., 301 Mo. 638; Howey v. Howey, 240 S.W. 450. Being regular on its face, the record of the justice imports absolute verity and cannot be impeached by verbal testimony, even though no objection was made to the verbal testimony offered. Nodaway County v. Williams, 199 S.W. 224. Even if it were proper to consider oral evidence, the rule applies that in order to set aside the judgment or record of a court the evidence must be clear and cogent and leave no room for reasonable doubt. Newel v. McDermand, 278 S.W. 818; McFadin v. Simms, 309 Mo. 312. (4) The motion to dismiss constitutes a collateral attack upon the order and record of the justice. 34 C.J. 520-522; Colvin v. Six, 79 Mo. 198, 200; Mueller v. Grunker, 145 Mo. App. 611; Smith v. Young, 136 Mo. App. 65; State ex rel. v. Ellison, 285 Mo. 301; Johnson v. Realty Co., 167 Mo. 325; Gunby v. Cooper, 177 Mo. App. 354; State ex rel. v. Central National Bank, 279 Mo. 228.
John T. Manning and Roland Van Hoefen for respondent.
(1) This appeal in the Court of Appeals should be dismissed for the reason that the appellant's abstract of the record conclusively shows that appellant failed to file a motion for a new trial or a motion for rehearing in the circuit court. Schuchort v. Brasler, 249 S.W. 164; Grossman v. Railroad, 248 Mo. 152; Dalton v. A.L. Register Co., 248 Mo. 150; Maplegreen Co. v. Trust Co., 237 Mo. 150; Holt v. Shryrock-Wright Grocery Co., 1 S.W.2d 849; Hume v. Hathaway, 249 S.W. 421; Kalamazoo Loose L. Book Co. v. Con P. Curran Printing Co., 242 S.W. 982. (2) Appellate court can review only those matters of exceptions which are embraced within the motion for a new trial. Hopper v. Bowen, 249 S.W. 92; Sicker v. Rambauer, 193 Mo. App. 113. (3) A motion to dismiss an appeal in the circuit court is the proper remedy where an appeal had not been taken within ten days after rendition of the judgment. Moulden et al. v. Anderson, 63 Mo. App. 34; Rank v. Merrill, 172 Mo. App. 489; Moulden Simpson v. Anderson, 63 Mo. App. 34; Peets v. Hoffman, 149 Mo. App. 153. (4) A justice of the peace has no authority to make a nunc pro tunc order allowing an appeal. Tyree v. Novran, 215 Mo. App. 630, 258 S.W. 717; Hedgewood v. Skiek, 233 S.W. 58.
This is an action in replevin, and originated before a justice of the peace in the city of St. Louis. The suit was brought by plaintiff, who is appellant here, against defendant, to recover an automobile.
The abstract of the record recites that on the 20th of October, 1926, the case was tried before a jury and a verdict was returned for the defendant for possession, and the value of the property was fixed at $453. From this judgment plaintiff appealed, or attempted to appeal, to the circuit court. The abstract recites that this appeal was taken on the 22nd of October, 1926, or two days after the trial of said cause in the justice court. When the case came up for trial in the circuit court, the defendant filed a motion to dismiss the appeal on the ground that the court had no jurisdiction for the reason that the judgment was rendered on the 20th day of October, 1926, and that no appeal was in fact taken until the 10th of November, 1926, and that said appeal was not allowed by said justice until the 10th day of November; that the justice of the peace fraudulently dated said appeal as having been allowed by him on the 22nd day of October, 1926, when in truth and in fact, said appeal was not filed with said justice, nor was said appeal allowed until the 10th day of November, 1926. It appears, that the court heard evidence on this question offered by both parties, and after hearing such testimony, dismissed plaintiff's appeal. From this action of the trial court plaintiff brings the case here on appeal, and files its purported bill of exceptions.
The defendant raises the point here that no motion for a new trial having been filed in the lower court, there is nothing here for review except the record proper, and therefore the judgment should be affirmed.
The appellant makes the point that the judgment entries of the justice of the peace are a part of the record proper, and inasmuch as this record of the justice of the peace shows that the appeal was taken within time, that such judgment imports verity and cannot be collaterally attacked by such a motion as defendant files. It is also insisted that the motion to dismiss is a part of the record proper and that it is not necessary to file any motion for a new trial to have the court's action reviewed.
As a general proposition, of course, when an entry which is required by law to be made in the justice's docket is regularly entered, it imports verity and is the only evidence as to the fact covered by such entry, and such entry cannot be collaterally attacked except for fraud, accident or mistake. [State v. Hobbs, 218 Mo. App. 448, 279 S.W. 200; Tyree v. Midwest Envelope Co., 215 Mo. App. 630, 258 S.W. 717.] But in this case, the defendant in his motion to dismiss the appeal charges that the entry, made by the justice, showing the appeal as being taken two days after the trial was had and judgment rendered, was fraudulently entered by said justice, and, therefore, this case comes within the exception to the general rule above stated. By section 2727, Revised Statutes of Missouri, 1919, the justice is required to make an entry in his docket the fact of an appeal having been made and allowed, and when made and allowed.
We are of the opinion that under the particular facts of this case, as revealed by the record here, the court had a right to hear testimony and determine whether or not fraud had been perpetrated as alleged in the motion. The motion to dismiss is not based upon the theory that the circuit court had no jurisdiction upon the face of the record. The motion sought to raise the charge of fraud in raising a question of fact only, which fact, if true, must be found de hors the record, requiring evidence to establish it. Such motion cannot be treated as a demurrer, because its disposition was not to be made as a matter of law, but depended solely upon facts. Therefore, it would be necessary to preserve the court's ruling upon the questions raised by the testimony by a motion for a new trial. [State ex rel. v. Ellison, 266 Mo. 423, 181 S.W. 998.]
We must presume in the absence of the testimony that it supported the finding and judgment of the trial court. The judgment of the circuit court is accordingly affirmed. Daues, P.J., and Becker, J., concur.
REPORTER'S NOTE: Writ of certiorari in the foregoing case was denied by Supreme Court, June 21, 1928.