_ ^ Statement. Appeal from the Circuit Court of the City of St. Louis to the St. Louis Court of Appeals. The judgment of the circuit court was there affirmed and the case was certified here as . . , , . , . . „ , being contrary to a previous decision of the Springfield Court of Appeals in the case of Lively v. Munál-Jones Lumber Company, 194 S. W. 741. *

The opinion of the St. Louis Court of Appeals was by Reynolds, P. J., and was reported in 207 S. W. at page 283. We content ourselves with making reference *57 to the case as there reported for a full statement of the facts and the opinion of the court. In brief, plaintiff (respondent here) instituted suit by attachment before Robert Walker, a justice of the peace of the City of St. Louis, against defendant for $500 for money of the plaintiff alleged to have been taken by the defendant from a safe belonging to plaintiff. Defendant was in the habit of receiving" money from plaintiff’s drivers and placing it for safe keeping in sealed envelopes in said safe which was in the office at the stables of the plaintiff where defendant worked as head stableman. Defendant lived with his family over the stable and had access to the office and safe at all times. He reported the loss of the money and it was thereafter charged that he took the money and checks amounting to something over $600.

The demand in the suit filed was for $500, the limit of the money jurisdiction of the justice court. The checks amounted to about $100. A garnishment was issued on said attachment and served upon two banks, one of which was the Broadway Savings Trust Company, which answered that it had in its possession the sum of $918.72 as the property of the defendant.

The writ of attachment was issued on a form in which the name of Charles S. Luce, another justice of the peace in the same district, was used instead of the name of Robert Walker, the justice of the peace who issued the writ. Return to this writ was made by the constable showing service on June 4, 1914, by delivering a true copy to defendant and by summoning the Broadway Savings Trust Company and the Northwestern Bank as garnishees. The garnishment against the Northwestern Bank was subsequently dismissed.

When the error in naming Justice Luce was discovered, an amended writ was issued on June 18, 1924, correcting said error. This writ was dated and made returnable on the same dates as the original- writ, to which writ constable made the return that he served it *58 on defendant June 4, 1914, and summoned the Broadway Savings Trust Company as garnishee. Thereafter and on September 1, 1914, the justice issued a new writ of attachment and summons returnable September 18, 1914, to which the constable made a non est return as to defendant and that he served the attachment by attaching money of the defendant in the hands of the Broadway Savings Trust Company. On October 1, 1914, the justice issued his alias writ to a special constable, commanding him to summon defendant to appear October 15, 1914, to which writ such special constable made return under oath that he served the summons by leaving a true copy thereof at the usual place of abode of the defendant with a member of his family over fifteen years of age. On October 15, 1914, the justice rendered judgment against defendant by default in the sum of $500. It does not appear whether judgment was rendered against the garnishee. After the rendition of such default judgment in the justice court, defendant appealed the case to the circuit court.

In the circuit court the defendant filed his motion to discharge the garnishment, setting out that he appeared therein solely for the purpose of the motion. This motion detailed the proceedings before the justice of the peace, which we have only briefly outlined above, and averred that the proceedings in the justice court were null and void and that the justice was without jurisdiction and prayed for a release of the garnishment and that the judgment in the justice of peace court be set aside and that the action be dismissed. This motion was overruled by the circuit court. Thereupon defendant filed his plea in abatement, stating that he appeared specially and only for the purpose of his plea in abatement and under protest, etc. The plea in abatement was tried first and resulted adversely to defendant. The trial of the case on the merits resulted likewise and judgment was entered against the defendant for $500. Motions for a new trial and in arrest of judgment in the *59 attachment proceedings and on the merits were overruled and the defendant has appealed.

justice Court: _ riaHsdictionfearanCe' I. The main contention of defendant is that the justice of the peace acquired no jurisdiction of his person or his property because there was no valid process; that the original writ of summons and at-tachment was void because returnable before another justice than the justice issuing same; that such void process could not be amended; that the writ of October 1, 1914, conferred no jurisdiction on the justice; that the statute does not authorize the appointment of a special constable to serve process in attachment suits and that therefore service thereunder on the defendant was a nullity; that where the justice court acquired no jurisdiction the circuit court acquired none on appeal and such appeal does not cure defective service or want of service.

The Court of Appeals sustained the action of the trial court and held that by going to' trial on the merits the defendant lost the benefit of his plea to the jurisdiction of the justice over his person and refused to determine the validity of the attachment, because that question was deemed not material for the reason that defendant had given bond covering the personal judgment rendered against him.

The opinion of that court recites its rulings in the case of Powell v. Railway Co., 178 S. W. 212, wherein it had previously held that defendant in that case waived his right to challenge the jurisdiction of the justice court by taking an appeal to the circuit court, and further recited that said Powell case had been certified to the Supreme Court, where it was still pending’ at that time.

In the ease of Cudahy Packing Company v. Chicago & Northwestern Railway Co., No. 21471, handed down in April, 1921, Division One of this court in an able and exhaustive opinion by James T. Blair, J., reviewed all the cases in this State on the vexed question of the effect of the taking of an appeal from the justice court to the circuit court and, with the concurrence of all the judges *60 of that division, held that the taking of such an appeal by the defendant ‘ ‘ constitutes such an appearance as to waive defects in or absence of summons or service.” By his appeal from the justice court the defendant entered his appearance in the case in that court and he was in court for all purposes of his case in the circuit court. It made no difference whether he went to- trial on a plea in abatement or on the merits or made default after his motion to discharge the garnishment and for dismissal of the case had been overruled. After he had entered his appearance by taking such appeal these motions were utterly futile for the purpose of attacking: the jurisdiction of the justice court over his person or his property brought before that court by garnishment under the writ of attachment.

——: Amount untary ^Credit:" jurisdiction. II. Another question raised by defendant and one not discussed in the opinion of the Court of Appeals is that the amount involved exceeded the jurisdiction of the justice court. The amount of cash missing exceeded $500 and no voluntary cr<Mit was given on the claim. To support this contention defendant cites the case of Trapp v. Mersman, 183 Mo. App. 512. Tlio action there was based on a note on which an amount in excess of the jurisdiction of the justice was due and it was held that the written instrument and not the memorandum of plaintiff as to the amount claimed determined the jurisdiction of the justice court;, that such memorandum did not amount to a voluntary credit on the note, so as to bring it within the jurisdiction of the justice.

In the case before us the action is based on tort and not on a written instrument. The jurisdiction of the justice court is determined by the demand. It is immaterial that plaintiff’s loss may have been in excess of $500. Plaintiff is permitted to waive recovery for a part of its loss, if it wishes. The defendant is in no position to object to such reduction. [Burden v. Hornsby, 50 Mo. 238.]

*61 , III. Defendant contends there was no evidence to support the judgment of the trial court, either on the merits or upon the attachment. It is unnecessary to set out the evidence at length, because it is fully reviewed in the opinion of the Court of Appeals. It tends to establish that defendant received the money exceeding $500 and put it in a safe under his control and that he was the only one present having keys to the inner door of the'safe. The regular watchman was on duty from five o’clock the evening before until after five o’clock the next morning and did not leave premises during the night. There was a vicious watchdog loose in the stables at night that would not permit strangers to enter. This watchman saw defendant come down to the office at about five o’clock on the morning’; the money was missing. This was an hour earlier than he usually came down stairs. The watchman saw no one except defendant about the place. A police officer saw defendant at 6:40 or 6:45 in the morning trying to open the safe and after-wards saw him running south away from the stables and asked him what was the matter, and defendant stated that’the money was gone. Defendant gave several reasons for opening the safe. Search of his rooms was made, but none of the money was found. The Court of Appeals held that there was .sufficient evidence to make a case for the plaintiff to submit to the trier of the facts. We agree ’with that court that there was sufficient evidence to make out a case for plaintiff. The same evidence which entitled the plaintiff to have the case submitted on the merits was sufficient on the plea in abatement on the ground that the damages for which the action was brought arose from the commission of a felony. The findings of the trial court conclude the matter.

Finding no error in the record, the judgment of the trial court is affirmed.