Schnabel v. Thomas

BROADDUS, J.

Respondent bas moved to dismiss tbis cause for tbe reason tbat tbe affidavit for appeal does not comply witb section 808, Revised Statutes 1899. Tbe affidavit, omitting tbe caption, is as follows:

“H. K. Bente, agent and attorney for John W. Tbomas, tbe defendant in tbe above cause, being duly sworn upon bis *181 oatla says: that tbe appeal prayed for by bim is not made for vexation or delay, but because be considers bimself aggrieved by tbe judgment and decision of tbe court. H. 3L Bente, being duly 'sworn upon bis oath states, that tbe facts set forth in tbe above and foregoing affidavit are true and that be makes this affidavit for and on bebalf of tbe defendant. (Signed) H. K. Bente, affiant. Subscribed and sworn to before me this twenty-ninth day of March, 1901. (Signed) O. L. Nelson, notary public.”

It nowhere appears in said affidavit that tbe affiant “be-lives that tbe appellant is aggrieved by tbe judgment or decision of tbe court,” as required by said section 808, supra, but tbe affiant, tbe agent says that be “considers bimself aggrieved.” But as he is not tbe party appealing, it is immaterial what be “considers.” It is a double kind of an affidavit. In the latter part, be says he makes the affidavit for and on behalf of the defendant, but this statement does not cure the defect pointed out.

This affidavit is something worse than a defective affidavit. Substantially, it is not an affidavit for an appeal, except in name. In the first place, the affiant prays for the appeal not for the appellant but for bimself, and because he “considers bimself aggrieved.” Tbe statute requiring tbe form of the affidavit of the appellant, or some one for bim, meant something; but if affidavits of tbe kind under consideration are to be upheld, we can not see that it has any utility whatever. Thomas v. Ins. Co., 89 Mo. App. 12 ; Clelland v. Shaw, 51 Mo. 440 .

Eor the reasons given tbe cause is affirmed.

All concur.