Wiltshire v. Triplett , 71 Mo. App. 332 ( 1897 )

Q-xll, J.

This is an action of forcible entry and detainer for the recovery of certain premises in Kansas City. The cause was brought before a justice of the peace, where on trial plaintiffs recovered. Defendants thereupon appealed to the circuit court, but when the case was there called they failed to appear, in person or by attorney, the judgment of the justice was affirmed, and this the court refused to set aside on defendants’ motion and they appealed.

Fa£ddetaine“y clavit?amen 1-mentijunsd10I. The main question on this appeal is, whether or not the entire proceeding is without jurisdiction and void because of an alleged defect in the affidavit appended to the complaint filed before the justice of the peace, and which was in the following form: “The said Martha F. Wiltshire, one of the plaintiffs, being duly sworn on her oath, for herself and as agent for her co-plaintiff Mary C. Buck, says that the foregoing complaint is true in substance,” signed and attested by the justice.

By t-he use of the above italicized words, “in substance,” it is contended that the complaint was fatally defective and conferred no jurisdiction, either on the justice of the peace before whom the case originated or the circuit court to which the same was appealed. This contention is based on a ruling of this court in Reilly v. Powell, 34 Mo. App. 431, where a similar affidavit was held to be insufficient. In Tegler v. Mitchell, 46 Mo. App. 349, a like affidavit, though said to be defective, was yet permitted to be amended in the circuit court, and the latter case was followed and approved fin Dean v. Trax, 67 Mo. App. 517. This authority to amend we thought given by the terms of section 5159 found in the chapter of the revised statutes relating to forcible entry and detainer.

If then the complaint under discussion, though defective, was yet amendable in the circuit court, we can not under the circumstances of the case treat it as an absolute nullity. “Judicial proceedings which are amendable are notvoid. Hardin v. Lee, 51 Mo. 241, and cases cited. Amendability in such cases is the experimenkim crucis of legal validity.” Rosenheim v. Hartsock, 90 Mo. 357. And since, as the record shows, defendants failed at every stage of the case — in the justice’s court and in the circuit court — to object to this defective affidavit, they must be held as having waived such irregularity; it is too late now to make such complaint. They should have done this when the action was pending below and while there was an opportunity to amend. This court will not assist defendants in quietly passing over such irregularities while there is an opportunity to correct them, and then spring a trap for the first time when the case gets here. The record shows that no such objection was raised at any stage of the proceeding below, not even in the motion for new trial or in arrest. Indeed it seems never to have been thought of until this appeal was taken.

^tlf'pracdcl’f61' grounds!specific It is true that defendants, in addition to a motion for new trial, filed in the court below what they termed a motion in arrest. But in that the sole ground is stated: “Because upon the whole record the judgment is erroneous.” This was not sufficiently specific to call the attention of the circuit court to the irregularity or defect now complained of. Our practice act provides that, “all motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion.” Sec. 2085, R. S. 1889. See Fox v. Young, 22 Mo. App. 386.

~efaneu!nfisacre-e coírt°.f trial II. As to the court’s action in overruling defendants’ motion to set aside the judgment of affirmance, entered in their absence and when their counsel were not present, we have little to say further than that this was a matter peculiarly within the discretion of the trial judge; and as the record fails to show that this discretion was arbitrarily or oppressively exercised, we must decline to interfere. The cause was called in the circuit court according to its setting on the calendar; defendants and their counsel failed to appear; and while one of these attorneys seems to have been detained at home on account of sickness in his family, yet no reasonable excuse is shown for the absence and inattention of the other. Trial judges must be allowed to enforce the rules of practice so as to insure the dispatch of the court’s business, and the appellate courts ought not to interfere except in cases of manifest abuse. This is clearly not one of those cases. Judgment affirmed. All concur.