ON MOTION NOE EEHEAEING.
Pee Cueiam.Much stress is laid on two points made by defendant as á reason why a rehearing should be granted. One is that the court in Tegler v. Mitchell, 46 Mo. App. 349, cited section 5153, Revised Statutes 1889, as authority for allowing an -amended affidavit. This was a mere inadvertence of no importance. The section intended was 5159. Dean v. Trax, 67 Mo. App. 517.
The other point is that we are in conflict with Fletcher v. Keyte, 66 Mo. 285. The distinction between that case and this is plain. In that ease it was held that an affidavit in forcible entry and detainer was jurisdictional and that as there was no affidavit to the complaint the justice had no jurisdiction. In this ease there was an affidavit. It was merely defective in form, and this defect we held in the foregoing cases could be amended under section 5159 of the forcible entry and detainer statute. If there had been no affidavit, then the decision of the supreme court in *339Fletcher v. Keyte would have governed. We are of the opinion that the case of Johnson v. Fischer, 56 Mo. App. 552, is not applicable. There it nowhere appeared that the land was in Saline county. A justice only has jurisdiction of actions of forcible entry and detainer when the land lies in the county of which he is a justice. It is fundamental that his jurisdiction must affirmatively appear on the record somewhere. We held this to be jurisdictional and not amendable. Much the same may be said of the case of Allen v. Scharinghaussen, 8 Mo. App. 229, and McQuoid v. Lamb, 19 Mo. App. 153. But in this case there was'an affidavit sufficient to confer jurisdiction and though it was defective it was such a defect as could be amended. Motion overruled.