Papin v. Howard , 7 Mo. 34 ( 1841 )

Opinion of the Court by

Napton, Judge.

The appellee sued Papin before a justice of the peace upon an account. The service of the writ was by leaving a copy with a white person of defendant’s family above the age of fifteen years. Judgment was rendered by the justice for the plaintiff. An affidavit for an appeal was made by an agent of the defendant, in the usual form, and bond given. When the case tcame up in the court of common pleas, the appellee moved to dismiss it,'because the affidavit for an appeal was not made by the appellant in proper person, but by another, which motion was sustained.

This suit before the justice was instituted in August, 1840; the appeal taken in September of same year. The proceedings are consequently regulated by the act ’39.

While the act of Feb. pe’ot¡ag9¿pren‘ peals from waa ir, f°-cc,noother the^Lty^g-Shoved could “lake the affidavit — it “"de by* an agent

That act is entitled “ An act supplementary to an act entitled an act to establish justices’ courts, and regulate proceedings therein,” approved March 21,1835, and provides that,

Any person aggrieved by any judgment rendered by a j ustice of the peace shall, before an appeal shall be allowed, make affidavit before the justice before whom such trial is had, that he does not take such appeal for the purpose of vexation or delay, but because he considers himself aggrieved by the judgment of the justice.”

This act seems to be unequivocal in its terms, and cannot, I think, admit of but one interpretation. If. is true that the act of 1835, to which it was supplementary, allowed appeals to be taken by the party, or some one for him, and required no affidavit; yet this last act which allows an appeal only in case of an affidavit made, must be regarded as repealing so much of the former act as is inconsistent with this provision. The legislature obviously designed that the party

, , . . , , , aggrieved should purge his conscience; and both the language and spirit of the act forbid the idea that any other than the party aggrieved could make the ncessary affidavit, The act passed at the last session of the legislature, tually repeals the law of’39, and places the matter as it stood under the act of 1835. Nothing can be inferred from this last act that it was declaratory of the law in force at .... r ■, , , , , , . the time oí its passage, but 1 should rather suppose it was designed to remedy the evils, or supposed evils, of the act of 1839. '

The judgment of the circuit court is affirmed.