text:
    Charlotte, Plaintiff in Error, vs. Chouteau, Defendant in Error.
    1. Instruments of conveyance executed in the presence of a Spanish lieutenant governor, and deposited among the archives of the'Spanish government, are records of the Spanish government within § 13 of the “ act concerning evidence,” (R. C. -1845, p. 469,) and copies of such " archives,” duly certified hy the recorder in whose office they- by law are deposited, are admissible in evidence.
    2. The enslavement of the African-race was recognized as legal in the Spanish, French and British colonies in America, although no law can be found which, in terms, reduced that race to bondage.
    3. Where negroes reduced to slavery acquired their freedom under the law& of the country in which they lived, they could not be again subjected to bondage: There is no prescription against liberty in such a case.
    4. A descendant of a negress brought to St. Louis in 1794 or 1795 from the-province of Canada, and sold as a slave, is entitled to her freedom, provided it be shown that the mother was never lawfully held as a slave in Canada, or that having been lawfully held as a slave, the law afterwards gave her a right to her freedom, and that she asserted the same. If, having been once a slave in Canada, she failed to assert her right to freedom there, and came to St. Louis with her master, neither she nor her descendants will be permitted to assert it here.
    5. A conveyance of a negro in the--presence of the Spanish-lieutenant governor of Louisiana, and authenticated by his signature, cannot b'e regarded as an adjudication that suclnperson was a slave.

      Error to St. Louis Circuit Court.

    This was a suit by tbe plaintiff suing as a poor person to establish her right to freedom. It is averred in the petition for leave to sue, that the petitioner ‘ * is entitled to freedom by be - ing born of a negress named Rose, who herself was born at Montreal, in Canada ; that about the year 1791, the said Rose was removed from Canada by a certain John Stock, an Indian trader, to his trading post at Prairie du Ohien, in the northwestern territory of the United States, west of the River Ohio, where she was detained by him as his slave until his death, some time in the year 1798; that she is informed that after the death of said Stock, she (Rose) was brought down to St. Louis by a certain Andrew Todd, a trader, who sold her as a slave to a Mr. Didier (a priest), contrary to a provision of an, ordinance of the congress of the United States, entitled “ An, ordinance for the government of the territory north-west of the' River Ohio,” passed July 13th, 1787 ; that she remained in the possession of said Didier, as his slave, and was afterwards sold, by him, as such'slave, to one Auguste Chouteau, since deceased,” &e. The declaration and plea were in the form usual in suits for freedom. On the trial, it was proven that plaintiff, Charlotte, was the daughter of a negress named Rose ; that the said Rose was at Mackinaw and Prairie du Chien between the years 1791 and 1794, and was there acting in the capacity of a servant to sundry persons ; that shortly afterwards, the said Rose was taken to St. Louis, where she was sold as a slave to, Mr. Didier, a priest, who afterwards sold her to Mr. Auguste Chouteau, under whom the defendants claim, by whom also she was held as a slave. Much testimony was given tending to-show that slavery did not exist in Canada, (where it is claimed that Rose, the mother of plaintiff, was born) and was not lawful there after the year 1763.
    The plaintiff offered to read in evidence certain copies of papers found among the Spanish archives, being known as archives Nos. 666 and 750 ; one purporting to be a copy of a bill of sale or conveyance, executed by Andrew Todd, merchant of Montreal, to Mr. Didier, curate of the parish of St. Louis, of •a negress named Bose, a slave, aged about twenty-seven, and acquired by said Todd of the estate of John Stock. This conveyance was executed October 28th, 1795, before, and authenticated by Manuel Goring Moro, commandant of St. Louis. The second paper offered in evidence as above stated, purported to be a copy of a conveyance of the same negress, Bose, and two infant children, made August 8th, 1798, by said Didier to Auguste Chouteau, executed before, and authenticated by, Ze-non Trudeau, lieutenant governor, &e., of Louisiana. This instrument of transfer purported to convey “ a negress named Bose, a native of Montreal, government of Canada, aged about thirty years,” &c. To the first of these copies there was appended the following certificate: “ State of Missouri, county of St. Louis, ss. I, John Buland, clerk of the Circuit Court and ex-officio recorder for the county aforesaid, certify the foregoing to be a full, true and correct copy of archive No. 666, as the same remains on file in my office. In witness whereof, I have hereto set my hand and affixed the seal of said court, at office, in the city of St. Louis, this 24th day of September, A. D. 1840. John Buland.” (Seal.)
    The second copy was certified in the same manner. The defendant objected to the giving of these copies in evidence, on the ground of irrelevancy and incompetency, and because they were at best only copies, and the originals ought to be produced or accounted for. The objections of defendant, except as to irrelevancy, were sustained, and the copies were rejected. The plaintiff excepted. It appears from the record that “ the plaintiff then offered to read from a record book from the recorder’s office, the following : (it does not appear what was read, or whether or not it was the record of the archives Nos. 666 and 750, copies of which, made in 1840, were offered in evidence, as above stated, and rejected. -Reporter:) the originals not being in the office of the recorder or in the keeping of the plaintiff, which was objected to by the defendant, for the same reasons stated above respecting the copies above mentioned, which objection was sustained by the court, and plaintiff’s counsel excepted.” The court, upon the motion of defendant, gave the following instruction : “ There is no evidence before the jury sufficient to establish that the plaintiff is entitled to her freedom.” Whereupon, the plaintiff took a nonsuit, with leave to move to set aside the same. The court refused to set aside the same, and the plaintiff brought the case to this court by writ of error. This case was previously on error, and the decision of this court is reported 11 Mo. Rep. 193. The trial was had at the April term of the Circuit Court, for the year 1853.

      Uriel Wright and Cobb, for plaintiff in error.
    1. The instruction given by the court was erroneous. The court usurped the function of the jury, and determined the sufficiency of the evidence. There was some evidence to support the issue for the plaintiff. 2. The court erred in excluding the two copies of deeds taken from the archives. The objection did not deny the originals. By the act of 1815, it was made the duty of the recorder to record all the papers found in the archives of the previous governments. (See ParJee v. Poussin, 8 Mo. 346.) A copy from the record of the archives would be evidence, and, on general principles, the copy of the archives would be also. The officer who certified the copy is the same officer who was to record the paper. If a copy of a copy be evidence, a fortiori, a copy of the paper itself must be. The evidence was relevant to prove by estoppel the birth-place of Rose, the mother of plaintiff.

      Geyer & Dayton, for defendant in error.
    1. The instruction given was properly given. The plaintiff' was not entitled to freedom by reason of the fact that her mother was held as a servant or slave in Prairie du Chien, or Mackinaw. ( Chouteau v. Pierre, 9 Mo. 3 ; Scott v. Emerson, 15 Mo. 577.) 2'» There was no evidence before the jury showing or tending to show that Rose, the mother of plaintiff, was born in or ever was in Canada. 3. The copies of conveyances offered, and in which alone there is any evidence of the birth-place of Rose,. were properly rejected. The originals were not accounted for, and no attempt was made to account for them or to produce them. They, of course, were not evidence, unless expressly authorized by our statute. They are not within either of the provisions of the statute concerning evidence. (R. C. 1845, p. 468-9.) They were properly rejected because the testimony was immaterial, and, had it been admitted, could not have affected the result. If the court erred in rejecting these papers, still the judgment should not be reversed unless it appear that, had they been admitted, the judgment would, or at least might have been different. Such is the rule where a plaintiff takes a nonsuit, and brings the case here by writ of error. Had these conveyances been admitted, the case would have stood thus: Rose, the mother of plaintiff, was a negress, born in Canada, about 1765; brought to St. Louis in or as early as 1795, during the time of the Spanish government; held as a slave here ; twice sold as a slave by instruments of -conveyance, executed before, and authenticated by, the Spanish lieutenant governor and commander here, and by other witnesses ; and continued to be held as a slave by an inhabitant of the territory during the residue of the existence of the Spanish government here, and during the period of the French rule here, and was thus held as a slave by an inhabitant of the country at the time it was acquired by the United States, and afterwards was held as a slave here for many years, and to the time of her death; never, so far as appears, claiming any right to freedom, nor did any of her children — all of whom were born here — assert any right to freedom until within a few years past. On this state of the case, we make the following proposition : That the plaintiff is not entitled to freedom by reason of the fact that Rose, her mother, was born in Canada, though it be admitted that slavery never did exist there as a fact. We have no right to inquire whence the inhabitants of this country, under the Spanish government, acquired their negro slaves. It makes no difference, in point of law, whether ¡they captured them in Canada or Africa. The court must take notice that it was lawful under the Spanish and French governments to hold negroes in slavery here. It was not established here, nor, perhaps, anywhere else, by positive law. It existed here as a fact, and the laws recognized slaves as property. No law is believed to have existed prohibiting the acquisition of negroes from any quarter. That the slave or his ancestors were originally born free, in some country, is probably true in every instance. This is true in reference to - all the slaves in the United States. Negroes are now held in slavery in the states of this Union whose ancestors were originally brought, without any authority of law, from Africa, where they were born free, and had always been free. No positive law either authorized their capture or declared them to be slaves. Yet their descendants are not, for that reason, entitled to their freedom. Negroes were held in slavery and recognized as property here under the Spanish government. Whether they had been obtained direct from Canada or Africa, they had once been free ; but, in either ease, became here slaves and property. Why, in this case, go back to inquire whether slavery existed as a fact in Canada ? Slavery existed here as a fact, and Rose was 'held as a slave here at least eight years before we acquired the country. If we are to go one step back of this, where shall We stop in the inquiry? Supposing it to be ascertained that when Rose was born and lived.in Canada, slavery did exist there as a fact, can we then go farther and ascertain if her mother was not born in England, or Africa, where slavery did not exist ? Why, if we start at all in this inquiry, shall we not proceed until we come to some ancestor who was born free ? And why should not the consequence be the same, however remote that ancestor may be found ? A more dangerous principle could not well be established.
   Scott, Judge,

delivered the opinion of the court.

The copies of the archives, offered in evidence, should not have been excluded. The last clause of the 18th section of the ..act concerning evidence prescribes that a copy of any record of the French or Spanish governments deposited in the office of the recorder of any county, being duly certified by him, shall be received in evidence, with like effect as the original.’' This provision is declaratory of a principle of the common law. In the case of the United States v. Percheman, (7 Pet. 53,) it is said, “ on general principles of law, a copy of a paper given by a public officer, whose duty it is to keep the originals, ought to be received in evidence.” The papers excluded were such as are contemplated by the section referred to. They were copies of the records of the Spanish government, deposited in the office of the recorder of St. Louis county, as appears by his certificate. The originals were authentic instruments, executed in the presence of the lieutenant governor, and deposited among the archives of the government..

Had these papers been admitted in evidence, they would have showed that Rose, the ancestor of the plaintiff, was born in Canada, and consequently the question would have arisen whether slavery, in fact, did ever exist in that province, so that an African and his descendants could have been lawfully held in bondage. For if Rose, the mother of the plaintiff, was ever lawfully a slave, though the law afterwards gave her a right to freedom, yet, if she failed to assert it there, and came with her master here, neither she nor her descendants will be permitted to assert it now.

We cannot yield to the argument that the plaintiff has no right to go back and show that her mother was free, in order to establish her right to freedom, on the ground that we cannot inquire whence the inhabitants of this country, under the Spanish government, acquired their negro slaves, it making no difference, in point of law, whether they captured them in Canada or Africa.

As the successors of the Spanish government, the authorities now existing here must take notice of the laws which prevailed in this country when it was a dependency of the kingdom of Spain. Our courts take judicial notice of those laws. Al-hough wa have seen no law or laws which,, in terms, reduced the African race to bondage, yet it is an historial fact, as well authenticated as any other, that the slavery of that race was recognized as legal in the Spanish, French and British colonies in America. Negroes were captured in Africa, brought to America and held in servitude. But when any of this race, who were then reduced to slavery, acquired their freedom under the laws of the country in which they lived, we- are aware of no law by which they, .except for crime, could be again subjected to bondage. The principle that there is no prescription against liberty, applied to them as well as to those of any other color. No law has been shown to us by which the Spanish authorities of Louisiana were authorized to reduce free persons to slavery. The fact that a conveyance of a negro was made in the presence of the lieutenant governor, and authenticated by his signature, in a colony where slavery was tolerated, and in whose presence it was customary to execute such instruments, and it not appearing that he had knowledge that the negro was not a slave, on no principle can be regarded as an adjudication that such person was a slave. Such instruments, so passed and authenticated, were only intended as evidence of the transfer of the title of one- person, to another, and never were supposed' to be an adjudication as to the status of the person transferred by the instrument. Such an act would be evidence that the government tolerated slavery, but we cannot see how it would have the effect of determining-whether the negro named in the conveyance was a slave or not. The courts of this state will protect the inhabitants in the enjoyment of all the rights they possessed under the Spanish government; but they are bound to resort to those laws, in order to ascertain whether a right existed under them or not. In the courts of Louisiana, in a case in which the Spanish law, as it existed here before the change of government, was administered, it was held, referring to the Spanish law of the third Partida as authority, that, if a man be free, no matter how long he may be held by another as a slave, his estate or condition cannot be thereby changed, nor can he be reduced to slavery, in any manner whatever, on account of the time he may have been held in servitude. (Delphine v. Devize, 2 Martin N. S. 650.) This principle was asserted in a case in which the descendant of a negro woman was-suing to establish her right to freedom.

The cause will be remanded, in order that the fact may be tried whether Rose was lawfully a slave in Canada.

The other judges concurring, the judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Bompart’s Administrator, Appellant, vs. Lucas & Hunt, Respondents.
    1. The probate courts have no power to authorize administrators to sell the real estate of their intestates, except in those cases provided for by statute : Held, therefore, that a deed, made by way of compromise of a claim in favor of the representatives of an intestate, and not for the purpose of raising anoney for the payment of the debts, &c., &c., though made by the administrator of such estate, under an order of the probate court, and purporting to pass all the interest of the intestate’s estate, will not pass the interest of minor heirs of such intestate.
    2. A. and B., by way of compromising a claim of certain heirs of C., deceased, executed their note for $2000, to one D., and delivered the same to E., with instructions to hold the same “ until P., administrator of (the said) C., deceased, executes a quit claim deed of relinquishment of the interest of the estate of said deceased in and to two tracts of land,” &c., to the said A. and B. : held, that the note cannot be legally demanded of the said E., so as to 'become the foundation of an action, until a deed is made passing all the interest of the estate of C. and comprehending the interest of minor heirs of said G. The condition is not satisfied by a deed, made by the administrator of C. under an order of the probate court, and purporting to convey all the interest of C.’s estate, it not appearing that the deed was made for the purpose of raising money for the payment of the debts of the intestate, &e., or that the probate court in any other way had the power to authorize the making of such a deed.

      Appeal from St. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      C. B. Lord and B. A. Hill, for appellant.
    1. The note in question ’having been once delivered, a suit can be maintained on it, notwithstanding a subsequent voluntary delivery of the note to Patterson to be held until the quit claim deed mentioned in said receipt of Patterson was executed. The delivery was absolute. If one make a deed and deliver it to the party to whom it is made as an escrow upon certain conditions, the delivery is absolute and the deed shall take effect as his deed. (Fairbank v. Metcalf, 8 Mass. 238, per Sedgwick, J. ; Wheelright v. Wheelright, 2 Mass. 447.) The note being once delivered, it became an absolute promise to pay money. The rights of the parties, fixed by the delivery of the note, were not divested by the subsequent placing of the note in the hands of the defendants or their agent. It was a contract fully executed and binding upon the makers. (4 Com. Dig. Eait, A. 3. Souverlye v. Arden, 1 Johns. Chy. R. 240. Arnold v. Patrick, 6 Paige, 310. Worrall v. Mann, 1 Selden, 229. 10 Wend. 311. Goss v. Whitney, 24 Yerm. 187. Den. d. v. Partee, 2 Dev. & Bat. 530. ) 2. The words in the receipt do not make a condition. The intent is uncertain. (1 Ral. 411. Poph. 99. Cro. Eliz. 414. Pol. 76. 3 Com. Dig. 88.) It is surely not a condition that the heirs should convey. The administrator, as such, had no power to convey the interest of the heirs. The defendants claim the benefit of the condition to avoid their solemn promise to pay money, and as to them it will be construed strictly. It will, therefore, be no answer to say that, because the estate did not descend to the administrator, the words, “ of the interest of the estate of said deceased” mean the interest of Erancis Bom-part’s heirs. 3. If there was a condition, it was literally and strictly complied with. The deed of March 2d, 1852, was a performance of the condition. 4. The court below erred in ruling out the testimony offered to show the pecuniary condition of Emilie Bompart, in connection with the will of her husband. She was to enjoy the property for life, and if her necessities required, she was to alien the same ; and if her necessities at the time of the conveyance of April 3d, 1846, required her to dispose of the property, then her deed conveyed all the interest which her husband had in the land mentioned in the deed.

      Glover & Richardson, for respondents.
    The main question to be considered is the ascertainment of the condition on which the note was made to take effect. 1. By the agreement of the parties the note was to be held by Patterson as an escrow, until a deed was executed and delivered to the defendants, which should operate to pass the interest of the minor heirs of Francis Bompart, and the deed which was tendered being ineffectual for that purpose or any other, the note never took effect. F. Bompart’s interest in the land did not descend to his administrator, and he had no interest in it except for the payment of debts under the circumstances prescribed by law. His heirs were his representatives, and the words, “ the interest of the estate” were equivalent to saying, the interest of the heirs. It is to be presumed that the defendants intended to contract for something. The mere deed of the administrator was a nullity. The defendants may have supposed that the administrator could procure an order for the sale of the property for the payment of debts, or that some proceedings would be instituted by which the interest of the heirs could be be sold for their maintenance. 2. Proof of the pecuniary condition of Emilie Bompart, widow of Francis Bompart, was properly rejected. She only purports in the deed to convey her interest as one of the heirs of Henry Delaurier, and not any interest which she acquired by the will of F. Bompart. The will gave her a life estate, and also a power to convey the fee in a certain contingency. She had then an interest and a power, and the deed being executed without particular reference to the power, it will be applied to the interest. (4 Kent, 334-5. Blagg v. Miles, 1 Sto. 427. 3 John. Oh. 551. Cox v. Chamberlain, 4 Yes. 631.) The execution of the deed of Mrs. Bompart and others, dated April 2d, 1846, was contemporaneous with the execution of the note sued on, and the agreement touching it, and the parties assumed that the interest of the estate of Francis Bompart, deceased, had not been convoyed by said deed.
   Ryland, Judge,

delivered the opinion of the court.

This is a petition upon a promissory note, twice assigned; the plaintiff asks payment for the amount of the note, and alleges it to-be in the possession of the defendants agent, H. L. Patterson. In an amended petition, there is alleged the proceedings in the Probate Court, in relation to a compromise between the defendants and Charles Roderman, to whom the note was given ; and that a deed was made accordingly by which the land described therein was conveyed to the defendants, James H. Lucas and Ann L. Hunt.

The defendants answer that three minor heirs of Francis Bompart claimed an interest in certain land belonging to the defendants as such heirs, and that defendants agreed to pay them $2000 for their interests if Roderman would procure a conveyance of their interests by proper proceedings in the Probate Court. This was done to quiet the defendants in their title.

The following is the receipt which Roderman took from Patterson: “St. Louis, April 11, 1846. Received of Charles Roderman, a note drawn and signed by James H. Lucas and Ann L. Hunt, dated April Bd, 1846, at three years, for two thousand dollars, which note I am instructed to hold until William Phillips, administrator of Francois Bompart, deceased, executes a quit claim deed of relinquishment of the interest of the estate of said deceased, in and to two tracts of land in St. Louis county, which tracts have been recently conveyed by quit claim of Louis Bompart and others to James H. Lucas and AnnL. Hunt. The said deed of Mr. Phillips, administrator as aforesaid, to be in favor of said Lucas & Hunt. (Signed,) H. L. Patterson.”

On the trial, the plaintiff read this receipt in evidence; also read the proceedings of the Probate Court, showing that the administrator of Fran<jois Bompart obtained an order to make a deed of all the interest of the estate of said Bompart to the tracts of land referred to ; also read a copy of deed dated 2d March, 1852, made by Louis F. Bompart, as administrator de bonis non of Franpois Bompart, deceased, to James H. Lucas and Ann L. Hunt, which deed was tendered to Lucas, but which he would not receive. It was put in the recorder’s office by Mr. B. A. Hill, the person who tendered it to Lucas, for record, who testified that, after search in said office for the deed, it could not be found ; the copy was then produced and read. This deed does not pretend to convey to Lucas and Hunt the interest and claim of the minor heirs of Bompart, deceased, but only a quit claim for all the interest that the estate of said Bompart had in and to the two tracts of land described, and all the interest which Phillips, as administrator, had therein, and all the interest which Louis F. Bompart, as administrator de bonis non of said Framjois Bompart, deceased, had therein, and all the interest which said William Phillips, as administrator, and which said Louis F. Bompart, as administrator de bonis non, were ordered by the Probate Court to convey. Also, read a quit claim deed from the widow of said Bompart and several of the heirs of said Bompart, not, however, including any person who was authorized or pretended to be authorized to convey the interest of the three minor heirs of Franpois Bompart, to Lucas and Hunt, for the said two tracts of land. The plaintiff also read the will of said Francjois Bompart, by which it appears that he willed the possession of his whole property to his wife during her life, and declared himself willing that she might dispose of it, if in want, by aliening or selling it.

The plaintiff then offered to show that in 1846 the widow of Bompart was in needy circumstances ; which proof was rejected, and exceptions taken by plaintiff. The plaintiff then proved that he demanded of Mr. Lucas the money after the deed had been tendered; also demanded the note of Mr. Patterson ; but Lucas refused to pay, and Patterson refused to deliver up the note. This is the substance of the plaintiff’s case. The court instructed the jury that the plaintiff could not recover. Thereupon, the plaintiff took a nonsuit; and afterwards made a mo-iion to set tbe same aside, which being overruled, he brings the ease here by appeal.

This court is of opinion that the court below committed no' error in giving the instruction ; that, from the plaintiff’s own showing, he cannot recover.

Now the note in question was to be held by Mr. Patterson until Wm. Phillips, administrator of Francis Bompart, deceased, executed a quit claim deed of relinquishment of the interest of the estate of said deceased, in and to two tracts of land in St. Louis county, which tracts have been recently conveyed by quit claim of Louis Bompart and others to James H. Lucas and Ann L. Hunt; the said deed of Phillips to be to Lucas and Hunt.

What is meant by the terms quit claim deed of relinquishment of the interest of the estate of Eramjois Bompart, deceased ? The object of the obligors of the note was to quiet their titles and claim to certain tracts of land in St. Louis county, to which the estate- of Eramjois Bompart laid claim, as was supposed. Now the administrator has the power, under certain circumstances, to sell and convey the real estate of the intestate, and by such sale discharge it from all the interest of the heirs of the intestate. When it becomes necessary to sell real estate to pay debts, and such sales are ordered and proceeded with according to law, the heir’s interest in the real estate so sold, passes under the sale to the vendee. So the estate of a deceased person may, thus far, have an interest in and to lands claimed to be the property of some one else, and, for the-purpose of paying debts, the administrator of such estate may, under the proceedings of the Probate Court, sell all such interest. But I know of no power in the Probate Court to authorize, in cases like the present, the administrator to sell the interest which the intestate’s estate has in real estate. This power can be exercised in cases provided for in the statute, but this case is not such a one. The numerous provisions in the 8d article of the act concerning administration, (R. C. 1845,), do not embrace a case like the present. Now, under these pro--ceedings of the Probate Court, given in evidence in this case, it cannot be insisted that the interest of the estate of Franqois Bompart passed under the deed of Lewis F. Bompart, administrator-^ bonis non, to Lucas and Hunt, divested of the interest of the minor heirs of said Francois. Indeed, no interest passed, because the proceedings were incapable of giving power to the administrator to pass thus the interest of Bompart’s estate. Under an order of sale, provided for by law, in cases allowed by law, such an interest would pass by sale and deed in pursuance thereof. Here, there is no pretence that the minor heirs’ interest passed. Lucas and Hunt then get nothing by this deed of the administrator de bonis non.

The court properly refused the evidence offered in relation to the pecuniary circumstances of the widow of Bompart in 1846. She did not, by her deed, pretend to sell the interest of the estate of her deceased husband in the tracts of. land mentioned.

The interest -of the -estate of Bompart to the two tracts of land, means all the interest. This embraces the right of the administrator to sell the said interest of his intestate’s estate, if necessary, to pay debts ; for the administrator has such interest, and can sell it, when necessary, under the law. It also means the interest which the heirs of Bompart, deceased, may have in and to the said tracts of land, when there is no necessity upon the administrator to retain the same to pay debts. Now, unless a quit elaim deed of relinquishment of the interest of the estate of Franqois Bompart, deceased — that is, all the interest— be made to James H. Lucas and AnneL. Hunt, and their heirs, this note cannot be legally demanded of Patterson, so as to become the foundation of an action.

Upon the whole case, then, we are of opinion that the court below laid down the law correctly by its instruction. Its judgment is therefore affirmed ; the other judges concurring.


author: BURGESS, J. —

text:
    STATE ex rel. TITLE GUARANTY & TRUST COMPANY v. BROADDUS et al., Judges Kansas City Court of Appeals.
    In Banc,
    February 27, 1908.
    1. APPEALS: Order Granting: Jurisdiction: Affidavit. An order of the trial court granting an appeal to the Kansas City Court of Appeals, does not of itself confer jurisdiction upon the Court of Appeals, in a case otherwise appealable to that court. There must also be a sufficient affidavit to support the appeal-
    's. -: Affidavit: Clerical Error: Jurisdiction. The affidavit In support of the appeal need not follow literally the language of the statute, but a substantial compliance therewith will suffice. The suit was by a bank against a trust company, and the affidavit, properly captioned, was made by “the agent and attorney for defendant in the abové-entitle'd cause,” who, “being sworn, upon his oath says that th'e appeal prayed for by Mm is not made for vexation or delay, but because he considers Idmself aggrieved by the judgment and decision of the cpurt” Held, that the defects complained of, the use of “him” and "himself” instead of “it” and “itself,” were clerical errors, which did not mislead or in any way prejudice the rights of respondent, and the affidavit was sufficient to confer jurisdiction on the Court of Appeals, to which court the case was properly appealable.
    •3. -: —i-—: Objections in Trial Court. In all fairness to the trial court and to appellant, objections to the sufficiency of the affidavit for an appeal should he made in the trial court.
    4. -: Jurisdiction: Mandamus to Hear: Affidavit. Where the affidavit was sufficient to give the Court of Appeals jurisdiction of the cause and that court has dismissed the appeal, or affirmed the judgment, upon motion, without a hearing on the merits, on the ground that the affidavit was insufficient, the Supreme Court by mandamus will compel the Court of Appeals to reinstate the appeal and hear and determine the cause.
    Mandamus.
    Peremptory writ awarded.

      Thos. H. Sprinkle and Edward J. O’Brien for relator.
    (1) If the order dismissing relator’s appeal for •want of jurisdiction by the Kansas City Court of Appeals because of tbe error in the affidavit for appeal herein before the Dade Circuit Court, was erroneous, then mandamus will lie. Const., art. 6, sec. 3; State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Laughlin, 75 Mo. 366; State ex rel. v. Smith, 172 Mo. 446; State, ex rel. v. Smith, 172. Mo. 618; State ex rel. v. Gibson, 184 Mo. 507; State ex rel. v. Broaddus, 105 S. W. 629; 13 Ency. PL So Pr., 537; Elliott on App. Proc., sec. 514; see. 871, R. S. 1899'. (2) The allowance of the appeal by the' circuit court in session during the term at which the judgment therein — sought to be appealed from — -was rendered constituted a valid appeal, of which the appellee was bound to take notice, because' the order allowing the appeal has the effect of transferring the jurisdiction of the' case to the appellate court and continues it therein on appeal. State ex rel. v. Grates, 143 Mo. 63; Maeklin v. Allenberg, 1001 Mo. 343'; secs. 806, 808, 809; 810, 812, and 813, R. S. 1899; Haven v. Railroad, 155 Mo. 226; Cooley v. Railroad, 149 Mo. 492; S.t. Louis Bridge Co. v. Railroad, 72 Mo. 664; Harrison v. Lakenan, 189 Mo. 581; Woods v. Railroad, 188 Mo. 229; DeRolt v. Railroad, 123 Mo. 496; Edmonston v. Bloomshire, 7 Wall. (U. S.) 307; Railroad v. Blair, 100 U. S. 661; Peugh v. Davis, 110 H. S. 227; Dodge v. Knowles, 114 H. S. 430; Hewitt v. Filbert, 116 U. S. 142. The order allowing the appeal herein is the criterion of jurisdiction, and not the affidavit for appeal; the latter is amendable. Crum v. Elliston, 33 Mo. App. 591; Bergesch v. Keevil, 19 Mo. 127; Launius v. Cole, 51 Mo. 147; Morquey v. Birkhead, 34 Mo. 214; Manion v. State, 11 Mo. 578; Melcher v. Scruggs, 72 Mo, 406; Barker v. Collins, 3 Mo. 315. (3) The judicial order properly made allowing the appeal is not and cannot be compared to the affidavit which precedes it, inasmuch as the affidavit is the mere act of the individual litigants or their agent acting for them therein, whilst the order is in the nature of the act of the sovereign judicially determined, and when the effect of such order or affidavit is to determine judicial right, then there can be no comparison between the two things. The order dismissing the appeal in this case being virtually an affirmance of the judgment in the court below, because of an imperfection in the affidavit, ignores the order of appeal. Harrison v. Lakenan, 189 Mo. 581; Woods v. Railroad, 188 Mo. 229; State ex rel. v. Gates, 143 Mo. 63‘; Cooley v. Railroad, 149 Mo. 492; Edmondston’v. Bloomshire, supra; Railroad v. Blair, 100 U. S. 661; Peugh v. Davis, 1101 U. S. 227; Dodge v. Knowles, 114 U. S. 430; Perkins v. Mason, 105 Mo. App. 317. (4) The respondent before the Court of Appeals duly appeared to the March term, 1907, at which term the appeal was returnable, and duly docketed for hearing therein on April 3, 1907, whereupon the appellant and appellee stipulated in writing tiled in said Court of Appeals that the said cause he continued over that term and to the. October term, 1907, of said Court of Appeals. Therefore, as the appellee therein appeared in the appellate tribunal generally, the same constituted an entry of appearance and waived any jurisdictional defect, such as is here insisted on, and it is estopped from taking any advantage thereof, as a continuance of a case by agreement of parties is tantamount to a general appearance and waives jurisdiction. Baisley v. Baisley, 113 Mo. 544; Bohn v. Devlin, 28 Mo. 319; Higgins v. Beckwith, 102 Mo-. 464; Peters v. Railroad, 59 Mo. 406; Cooley v. Railroad, 149 Mo. 491; Auspach v. Ferguson, 71 Iowa 144; Wilgus v. Gettings, 19 Iowa 82; Roundy v. Kent, 75 Iowa 662; Hanson v. Hoitt, 14 N. H. 56; Fitzpatrick v. Cottingham, 14 Wis. 219; Bombeck v. Bombeck, 18 Mo. App. 26; St. Louis Bridge Co. v. Railroad, 72 Mo-. 668; Wilson v. Kelly, 81 Pa. St. 411; Coby v. Halthusen, 16 Col. .10; Robertson v. O’Rielly, 14 Col. 441.

      Edw. J. White and Edgar P. Mann for respondents.
    (1) Mandamus will not lie to compel a subordinate court to reinstate an appeal which it has dismissed after, full and fair consideration of the record. State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Neville, 110 Mo. 348; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 374; High, Extra. Leg. Rem. (2 Ed.), 191-247; Ex parte Newman, 14 Wall. 152; Ex parte Brown, 116 U. S. 401; State ex rel. v. Wright, 4 Nev. 119; People ex rel. v. Weston, 28 Cal. 639-; Francisco v. Ins. Co-., 36 Cal. 283; Wells v. Stackhouse, 2 Harr. (N. J.) 355; Swinickson v. Corwin, 2 Dutch. 311; People v. Judges, 20 Wend. 658; Coheen v. Myers, 11 B. Mon. 423. (2) The affidavit for appeal signed by Thomas H. Sprinkle was insufficient to confer jurisdiction of the appeal on the Kansas City Court of Appeals. Thomas v. Ins. C'o., 89 Mo. App. 12; Schnahel v.. Thomas, 92 Mo. App. 180; United Iron Works Co. v. Lead & Zinc Co., 102 S. W. 1104; Railroad v. Powell, 104 Mo. App.' 362. (3) A failure to comply with any of the statutory conditions governing appeals will render an appeal inoperative, as the right of appeal did not exist at common law. Robinson v. Walker, 45 Mo. 117; St. Louis v. Gunning Company, 138 Mo. 347; Green v. Gastello, 35 Mo. App. 127; James v. Robinson, 1 Mo. 595; Bemecker v. Miller, 37 Mo. 498; McClelland v. Shaw, 51 Mo. 440; Thomas v. Finley, 3 Mo. 288; State ex rel. v. Kenchler, 83 Mo. 193; Lengle v. Smith, 48 Mo. 276; Stavely v. Kunkel, 27 Mo. 422; Gill v. Scruggs, 79 Mo. 187; State v. Rhodes, 86 Mo. 635; Guy v. May, 141 Mo. 441; Allen v. Britton, 141 Mo. 173; Long v. Hawkins, 178 Mo. 103 ; Lindsay v. Thomas, 10 Ohio St. 452; Luther v. Edger-ton, 90 Cow. 227; Ex parte Shethar, 4 Cow. 540; Clark v. Conn., 1 Munf. 160; Gibson v. Lynch, 1 Munf. 495; Moore v. Winkler, 3 Mo. App. 596. (4) ‘‘The respondent cannot waive the question of defective affidavit for appeal, or estop himself to urge its insufficiency by appearing in the appellate court and consenting to a continuance.” Railroad v. Powell, 104 Mo. App. 362. (5) Nor can the statutory essentials governing appeals be waived in any case, for the reason that jurisdiction of the subject-matter cannot be affected by the acts of the parties litigant. State ex rel. v. Woodson, 128 Mo. 514; Peters v. Edge, 87 Mo. App: 283; Sehested v. Kansas City, 68 S. W. 1068; Thomas v. Finley, 3 Mo. 288; Railroad v. Powell, 104 Mo. App: 362;-Gie-sing v. Schowengerdt, 24 Mo. App. 554. (6) The alternative writ on its face shows that there was not sufficient ground for this court, as a court of equity, to grant the relator the relief prayed for, as there is no showing that its counsel, Thomas H. Sprinkle, was unable to read the affidavit filed in the trial court, and his own brief and argument admit that it was his inadvertence and no act of the trial court or its officers or opposing counsel that caused him to fail to comply with the statutory prerequisites governing the appeal of the relator. Harding v. Bedoll, 202 Mo. 629'.
   BURGESS, J. —

This is a proceeding by mandamus to require the judges of the Kansas City O'ourt of Appeals to set aside its order dismissing an appeal in the case of the Farmers’ State Bank of South Greenfield against the Title Guaranty & Trust Company of Scranton, Pennsylvania, pending in said court, to reinstate said cause, and proceed to hear and determine the same. .

The following is a brief summary of the facts:

On July 18, 1906, in the circuit court of Dade county, the Farmers’ State Bank of South Greenfield, Missouri, was awarded judgment for $1,898.85 against the Title Guaranty & Trust Company of Scranton, the relator in this proceeding. On the same day, after unavailing motions for a new trial and in arrest of judgment, the relator filed its affidavit praying an appeal to the Kansas City Court of Appeals, which affidavit, omitting caption, reads as follows:

“Thos. H. Sprinkle, the agent and attorney for defendant in the above-entitled cause, being sworn upon his oath, says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision' of the court.
“Thos. H. Sprinkle.
“Agent and Attorney.
“Subscribed and sworn to before me this 18th day of July, A. D. 1906'.
“ O. A. Ketchum, clerk,
“By John A. Davis, D. 0.”

Thereupon, the circuit court made the following order granting the appeal:

“Now, at this day, the affidavit and application for appeal coming on to he heard, the court having seen, heard and fully understood all the matters and things contained in said application, the same is by the court granted to the Kansas City Court of Appeals.”

Thereafter, on September 6, 1906, the relator, as appellant in said cause, in lieu of a complete transcript, caused a certified copy of the record entry of the judgment appealed from, together with the order granting the appeal, to be filed in the Kansas City Court of Appeals, and filed in said court an abstract in lieu of a complete transcript in said cause.

Thereafter, on February 14, 1907, counsel for the parties -filed a stipulation agreeing that the cause, on account of the fact that the bill of exceptions was necessarily filed too late to properly brief and prepare the case for argument, be continued to the October term, 1907, of said appellate court, whereupon the court made an order continuing the cause to said October term.

On October 2, 1907, the attorneys for respondent in said cause filed a motion to dismiss the appeal, as follows:

“Comes now the respondent in the above-entitled cause and moves the court to dismiss the appeal of appellant in this court, and as grounds for said motion respondent respectfully presents to the court that appellant’s affidavit for an appeal filed in this court, on which the appeal of appellant was allowed, is, as shown in the additional abstract of the record herewith filed, in the following form: [Reciting said affidavit.]
“That said affidavit .for appeal is insufficient to confer jurisdiction of this court over the subject-matter involved in the said cause of action, and this court is therefore wholly without jurisdiction of said appeal.”
“Now, at this day'comes the said respondent by attorney, and upon its motion, it is considered and adjudged by the court that the appeal herein be and the same is hereby dismissed, and that, the said respondent recover against the said appellant costs and charges herein expended, and have therefor execution.”

Relator filed its motion for a re-hearing on the following grounds: (1), surprise; (2), estoppel; (3), that, the error ascribed to the affidavit for appeal is clerical only; (4), that the error itself is that of the clerk of the court below in printing the word “himself ” without any warrant in reason, and misleading the latter thereby; (5), that in the interest of common justice the appellant should not be amerced in a large amount, without any fault on its part, and denied its day in court. The motion further showed that relator had made efforts, prior to October 20, 1907, to have the affidavit for appeal amended in the trial court, but without success.

On November 4, 1907, the Court of Appeals overruled said motion for re-hearing, and refused to take jurisdiction of the appeal.

Thereafter, on the 16th day of November, 1907, relator sued out from this court a preliminary writ of mandamus directed to the respondents, Bibridge J. Broaddus, James Ellison and James M. Johnson, judges of the Kansas City Court of Appeals, commanding them, immediately upon receipt of said writ, to proceed to' hear the appeal in the cause wherein the Farmers’ State Bank of South Greenfield is respondent and the Title Guaranty & Trust Company of Scranton, Pennsylvania, is appellant, being case No. 8008 of said Court of Appeals, as docketed for the October term1, 1907, thereof, according to the true intent and meaning of said appeal so taken by the relator herein, or that they appear before, our Supreme Court, In Banc, on or before the 2nd day of December, 1907, and show cause for their refusal so to do.

Respondents’ return, in substance, stated that,, prior to the issuance of said writ, respondents had rendered a decision based upon a full and complete consideration of the record in the cause before them on appeal, entitled Farmers’ State Bank of South Greenfield against the relator; that, acting in their judicial capacity in the premises, respondents had complete power and authority in determining the question of jurisdiction, or the right of the relator to be heard upon its said appeal before them; that the Supreme Court is without authority of law, by extraordinary writ or rule, to compel the respondents to proceed to afford relator a hearing upon the merits of its appeal in said appealed cause; that respondents rendered the only judgment which could have been rendered upon the subject-matter submitted for their consideration in said appealed cause.

Relator’s replication to respondents’.return specifically denied the said statements and propositions of said return to the alternative writ.

It is contended by relator that if the order dismissing its appeal, for want of jurisdiction, by the Kansas City Court of Appeals, because of the error in the affidavit for the appeal before the Dade Circuit Court, was erroneous, then mandamus will lie. On the other hand, the respondents maintain that mandamus will not lie to compel a subordinate court to reinstate an appeal which it has dismissed, after full and fair consideration of the record, as was done by said Court of Appeals in the case of the Farmers’ State Bank of South Greenfield against the Title Guaranty & Trust Company of Scranton, Pennsylvania.

While there are many authorities cited by respondents which sustain their contention, it was held by this court, in the case of State ex rel. v. Smith, 172 Mo. 446, that the Court of Appeals having improvidently dismissed a case appealed to it, and of which it had jurisdiction, the Supreme Court would compel it, by mandamus, to exercise its jurisdiction to hear and determine the case. In that case the appeal was dismissed because of an imperfect abstract filed by the appellant therein. A parallel case was that of State ex rel. v. Smith, 172 Mo. 618, in which the former case was followed and approved. These cases are based upon the theory that, by dismissing the appeal, the Court of Appeals simply refused to exercise jurisdiction of an appeal of which it clearly had jurisdiction.

In the case under consideration quite a different question is presented. The question here is whether the Kansas City Court of Appeals had jurisdiction of the appeal. This is denied in the return to the original writ, in which it is affirmed that said court had jurisdiction of the appeal at the time of its dismissal.

It is argued by relator that the allowing of the appeal by the circuit court, in session during the term at which the judgment sought to be appealed from was rendered, constituted a valid appeal, of which the appellee was bound to take notice, because, as contended, the order allowing the appeal had the effect of transferring the jurisdiction of the case to the appellate court. But to the position that the order granting the appeal, in the absence of an affidavit therefor, confers jurisdiction upon the appellate court, we cannot assent.

By the provisions of section 806, Revised Statutes 1899, “any party to a.suit aggrieved by any judgment •of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction.” Section 808 provides that “no such appeal shall be allowed unless: First, it be made during the term at which the judgment or decision appealed from was rendered; and, second, the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such appeal is not made for vexation or delay, hut because the affiant believes that the appellant is aggrieved by the judgment or decision of the court.” Under this section of the statute, it is plain that the filing of the affidavit for appeal in the-court during the same term is absolutely necessary in order to give force and effect to the appeal.

It will be noted that the affidavit in the case is not in strict compliance with the statute, in that it uses the word “himself” instead of the word “appellant,” and states that the appeal prayed for by Mm is not made for vexation or delay, but because he considers himself aggrieved by the judgment of the court.

In Thomas v. Mo. Town Mutual Fire Ins. Co., 89 Mo. App. 12, it was held that without a sufficient affidavit for an appeal, the appellate court acquires no jurisdiction, and that the affidavit must show that the appellant, and not the agent, is aggrieved by the judgment.

In Schnabel v. Thomas, 92 Mo. App. 180, the same court held that an affidavit alleging that the agent making it is aggrieved, and not the appellant, is not merely a defective affidavit, but is not an affidavit at all except in name.

In Railroad v. Powell, 104 Mo. App. 362, it is held that the right of appeal being purely statutory, a substantial, if not a literal, compliance with the statutory requirements in that respect is necessary to confer jurisdiction upon an appellate court, and that an affidavit for appeal which omits the statement of affiant’s belief “that the appellant is aggrieved by the judgment of the court” is deficient in statutory recitals, and cannot give the appellate court jurisdiction of the cause; further, that the appellate court has no power to make an order allowing the amendment of a defective affidavit for appeal, or for the substitution of a new affidavit which will conform to the statute.

Again, in the ease of United Iron Works Co. v. Sand Ridge Lead & Zinc Co., 126 Mo. App.238, it is held by the St. Louis Court of Appeals that an affidavit for appeal from a judgment against' a corporation, made by its president, which recites that he is the president and that the appeal prayed for by him is not made for vexation or delay, but because he . considers himself aggrieved by the judgment, is insufficient to confer jurisdiction on the appellate court under section 808, Revised Statutes 1899, providing that no appeal shall be allowed unless appellant or his agent shall file his affidavit, etc., and that the court must consider a motion to dismiss an appeal for want of jurisdiction because of the insufficiency of the affidavit, though the motion be not made until after the submission of the cause by both parties upon brief, jurisdiction not being acquired by consent. The court quotes from the case of State ex rel. v. Woodson, 128 Mo. 497, the following: “The right of appeal in civil actions was unknown to the common law; it is regulated wholly by statute. [3 Black. Com., 402.] It had its origin in the civil law. [1 Am. and Eng. Ency. Law, 616.] Being statutory in its origin, it is essential to the exercise of the right that the statute be strictly pursued.”

In support of relator’s contention that the order allowing the appeal conferred jurisdiction upon the Court of Appeals, relator cites a large number of decisions of this court and of the Supreme Court of the United States. But, as we have already ruled that the order granting the appeal did not of itself confer jurisdiction upon the Court of Appeals, we will only consider such of our own rulings as seem to bear upon the sufficiency of the affidavit in question to confer jurisdiction of the case upon the appellate court.

In St. Louis Bridge & Construction Co. v. Railroad, 72 Mo. 664, after the submission of the cause upon its merits, the point was made by the respondent that no sufficient affidavit for an appeal was made in the trial court. The affidavit, instead of stating that “affiant believes that the appellant is aggrieved by the judgment,” says “that plaintiff feels aggrieved,” etc. It was held that if the affidavit was not such as to warrant the order granting the appeal, the point should have been made by motion to dismiss the appeal before the cause was submitted, and that the court would not thereafter go behind the order granting the appeal to determine the sufficiency of the affidavit on which it was made, or whether any affidavit whatever was filed.

State ex rel. Patton v. Gates, 143 Mo. 63, was an appeal without bond from an order granting a new trial, and the question was whether said order stayed the trial of the cause in the circuit court, pending such appeal in the Supreme Court. It was held that the effect of the order of the court allowing the appeal was to transfer the jurisdiction of the cause to the appellate court, and to suspend the exercise of all further judicial functions in the case by the trial court, whether a bond were filed or not, the only purpose of the bond being to suspend execution on the judgment below pending the appeal. In that case it is expressly stated that the appeal was in due form, and that the only condition required for granting such appeals is that application therefor shall be made during the term at which the judgment is rendered, and that the appellant or his agent, during said term, file in the court an affidavit stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment of the court; that thereupon it becomes the duty of the court to make an order allowing the appeal as required1 by the statutes, and that the effect of the order is to transfer the jurisdiction of the cause from the circuit to the appellate court. No objection whatever was made to the affidavit for appeal in that case.

In Cooley v. Railroad, 149 Mo. 487, it was held that under section 2114, Revised Statutes 1889 (sec. 673, R. S. 1899), a jurat omitted from the affidavit upon which the appeal is granted may be supplied by leave of either the appellate or the trial court, upon a showing that the affidavit had been properly signed and sworn to. It was also held, following St. Louis Bridge Con. Co. v. Railroad, supra, that if an affidavit is hot such as to warrant an order granting an appeal, the proper procedure is to move to dismiss the appeal before the case is submitted, and that an objection to the sufficiency of the affidavit will not be considered after the case has been submitted on its merits.

Haven v. Railroad, 155 Mo. 216, simply affirms what was said in State ex rel. Patton v. Gates, supra, to the effect that an order granting an appeal had the effect of transferring the jurisdiction of the case from the circuit to the appellate court; which, of course, presupposes that the appeal is regularly taken and the proper affidavit therefor filed.

In the case of DeBolt v. Railroad, 123 Mo. 496, it is held that an affidavit for appeal made by the agent of the appellant which states that the appeal prayed for is not made for vexation or delay, but because appellant considers himself aggrieved by the judgment and decision of the court, is substantially sufficient under section 2248, Revised Statutes 1889. The court said: “Objection is made in this court to the sufficiency of the affidavit for appeal. While open to criticism, we think it substantially sufficient. No point was made against it in the trial court, and the objection here would not justify a dismissal of the appeal. ’ ’

The records of this court disclose that in the case of Woods v. Railroad, 188 Mo. 229, a motion was made to dismiss the appeal, upon the ground of the insufficiency of the affidavit, which affidavit was as follows: “Sam Sparrow, attorney for and agent of the Wabash Railroad Co., the defendant in the above-entitled cause, being sworn, upon his oath says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision of the court. ’ ’ The motion was overruled, and a motion to supply affidavit was also overruled. It will be observed that the affidavit in the present case, leaving off the formal parts, is in all essential particulars a literal copy of the affidavit in the Woods case.

Again, in the case of Harrison v. Lakenan, 189 Mo. 581, the records show that a motion to dismiss the appeal because of the insufficiency of the affidavit, which alleged that “C. A. Barnes, one of the attorneys for the defendants in the above-entitled cause, being sworn, upon his oath says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision of the court,” was overruled. This affidavit, like the one in the Woods case, is essentially the same as the one in this case.

While nothing is said in the opinion in either one of the last-two cited cases respecting the sufficiency of the affidavit for appeal, a brief was filed in the Woods case by respondent in support of the motion to dismiss the appeal, and by appellant in support of its motion to supply affidavit nunc pro tunc, and it must be presumed that the question as to the sufficiency of the affidavit for appeal was well and carefully considered. So that, when these adjudications are considered in connection with section 808 of the statute, we can but conclude that the order of the circuit court granting an appeal does not of itself confer jurisdiction upon the appellate court, but in addition thereto there must be filed an affi•davit for appeal in the trial court, within the time prescribed by the statute; but such affidavit need not follow literally the language of the statute; a substantial compliance therewith will suffice. [Thomas v. Mo. Town Mutual Fire Ins. Co., 89 Mo. App. 12.]

The defects in the affidavit complained of, and for which the respondents held it to be invalid, and insufficient to confer jurisdiction upon the Court of Appeals, were clerical errors, which did not mislead or in any way prejudice the rights of the Farmers’ State Bank •of South G-reenfield, respondents in said appealed case.

No point was made against the sufficiency of the affidavit in the court from which the appeal was taken, and where, in all fairness to the trial court and the appellant, the objection to the affidavit should have been made; otherwise, an appellee or his attorney might remain silent, knowing that an invalid affidavit for the appeal was being or had been filed, and after-wards take advantage of his adversary by raising an objection to it for the first time in the Court of Appeals,, knowing that, under the rulings of that court, it could not be amended. It, is, however, due to the counsel for respondents to say that there is nothing disclosed by the record in this case from which it can be inferred that they knew of the defect in the affidavit until after the case reached the appellate court, and had once been continued by agreement in that court.

The Courts of Appeals have seemingly been disposed to construe section 808, supra, according to its strict letter, rather than its spirit and intention, which latter method of construction has been adopted and followed by the Supreme Court.

In accordance with our rulings in DeBolt v. Railroad, supra; Woods v. Railroad, supra; Harrison v. Lakenan, supra, and Cooley v. Railroad, supra, we hold the affidavit in question to be in substantial compliance with the statute, and that it conferred jurisdicti on of the appeal upon the Kansas City Court of Apu peals.

Onr conclusion is that a peremptory writ should he ordered to reinstate the appeal and hear and determine it.

Gantt, C. J., Valliant, Fox and Lamm, JJ., concur; Woodson, J., dissents; Graves, J.,

agrees to all that is said as to the sufficiency of the affidavit in question. He dissents as to the result for the reason that the case simply calls for the construction of the statute pertaining to such affidavits, and the Court of Appeals has as much right to pass upon such statute in a case falling within its jurisdiction as has this court in a case falling within our jurisdiction. [Railroad v. Sloop, 200 Mo. 198.]