State v. Woodson

Decision Date21 May 1895
Citation128 Mo. 497,31 S.W. 105
PartiesSTATE ex rel. CRAIG v. WOODSON et al.
CourtMissouri Supreme Court

1. An appeal duly taken from the judgment rendered in an election contest, appeal bond being given as required by Rev. St. 1889, § 4744, does not vacate or supersede such judgment. Brace, C. J., and Barclay, J., dissenting.

2. Pending an appeal from a judgment rendered in an election contest, the court rendering the judgment may, by attachment, compel the appellant, who holds the office under a certificate of election, to surrender it to the appellee, who is by such judgment declared to have been elected. Brace, C. J., and Barclay, J., dissenting.

3. Under Rev. St. 1889, § 4707, providing that "in every case of a pending contested election, the person holding the certificate of election may give bond qualify and take the office * * * and exercise the duties thereof until the contest shall be decided," the right of such certificate holder to the office terminates with the entry of a final judgment against him in the trial court; and the expression, "until the contest shall be decided," does not refer to decision on appeal. Brace, C. J., and Barclay, J., dissenting.

In banc.

Application by the state of Missouri, on the relation of Enos Craig, against A. M. Woodson and Robert Nash, for a writ of prohibition. Denied.

Randolph & Imel and Brown & Pratt, for relator. Hall & Woodson, Huston & Parrish, Casteel & Haynes, and Jas. W. Boyd, for respondents.

SHERWOOD, J.

Enos Craig received his certificate of election as clerk of the county court of Buchanan county in November, 1894, it having been ascertained by the votes cast up and counted that he had received one more vote than Nash, his opponent and competitor for that office. In due time thereafter, Craig received his commission from the governor; and having qualified, etc., according to law, on the 7th of January, 1895, he took possession of the office, in which he has ever since continued, performing the duties thereof. Nash, in due form, contested the validity of Craig's election, and thereupon such proceedings were had as resulted in a judgment in the contestant's favor on the 19th day of February, 1895, in the Buchanan circuit court; that court, pursuant to the provisions of section 4707, Rev. St. 1889, adjudging that Nash was duly and legally elected clerk of the county court aforesaid, and ordering that Craig should give up the office to Nash, and deliver to him the books, etc. Upon this, Craig filed his motions for a new trial and in arrest, both of which were on the 2d of March, 1895, denied, and Craig then filed his affidavit for an appeal, which was allowed. On the 4th of March next thereafter, Craig appeared in court, and asked the court to fix the amount of his appeal bond; and on its being ascertained that the accrued costs were about $1,000, and those likely to accrue would be some $200 more, the court fixed the amount of the appeal bond at $2,400, a sum considered to be double the amount of the certain and contingent costs. On the next day, however, the attorney for Craig appeared, and tendered a bond in the sum aforesaid, but containing conditions applicable to bonds in ordinary appeals to this court, as specified in section 2249, Rev. St. 1889, and not such as provided for in section 4744. But the trial court refused such a bond, and, on the attorney professing his ignorance of how to prepare a bond conditioned as provided in the section last named, kindly proffered its assistance, and dictated a bond as required in that section. The conditions of the bond thus dictated and accepted by the court were as follows: "That said appellant, Enos Craig, shall prosecute his appeal with due diligence to a decision in the said supreme court, and shall pay all costs that have accrued or that may accrue in said cause." Those of the bond rejected were these: "The said appellant, Enos Craig, shall prosecute his appeal with due diligence to a decision in the appellate court, and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and, if the judgment of such court or any part thereof be affirmed, shall comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against the appellant by any appellate court, and pay all costs accrued and to accrue in said cause." On the 4th of March, the day next preceding that on which the appeal bond of Craig was accepted, Nash served on Craig a certified copy of the judgment of ouster, rendered some three weeks before that; and then Nash presented a copy of said judgment to the county court, and also a good and sufficient bond, and requested its approval of the same; but that court deferred the matter until the following Wednesday, March 6th, when Nash again offered and renewed his request for the approval of his bond, but without effect. On the next day, March 7th, Nash took the oath of office as clerk, etc., and had the same recorded as provided by law, and, having done so, on the same day moved the circuit court for an attachment against Craig to enforce the order made in the cause, and bottomed upon the judgment aforesaid, for the delivery by Craig of the office, papers, etc., to Nash. This motion of Nash's was granted, and the attachment issued, made returnable on March 11th; but prior to that date, to wit, March 9th, certain judges of this court granted a rule against A. M. Woodson, judge of the circuit court, as well as against Nash, commanding that they show cause why a writ of prohibition should not issue, as prayed by relator, Craig. On March 8th, after having recorded his oath of office, Nash again appeared before the county court, and asked that court to approve the bond, but met with failure again, because the county court alleged that a contest for the office was pending. The foregoing facts, thus briefly related, form the basis on which rests the salient question in this record, to wit, what was the legal force and effect of the appeal taken and bond given by relator, Craig?

Section 4707, Rev. St. 1889, to which allusion has been made, declares: "In every case of a pending contested election, the person holding the certificate of election may give bond, qualify and take the office at the time specified by law, and exercise the duties thereof until the contest shall be decided; and if the contest be decided against him, the court or other tribunal deciding the same shall make an order for him to give up the office to the successful party in the contest, and deliver to him all books, records, papers, property and effects pertaining to the office, and may enforce such order by attachment or other proper legal process.' This section has been the law for about 30 years, and is first found in the Revised Statutes of 1855 (p. 706, § 56), since which time it has remained unchanged (Gen. St. 1866, p. 66, § 53; Rev. St. 1879, § 5529). Under the law as originally enacted, no appeal lay from the judgment rendered, and the "decision" of the trial court was, consequently, absolute and final. The contest at that time was most certainly "decided" by the trial court, and no other court could at that time, after rendering judgment against the certificate holder, make the order to him to give up the office, books, etc., to the "successful party in the contest." Afterwards, however, the right of appeal was granted in such cases, whereby an appeal was had from the county court to the circuit court, where a trial was had de novo, and appeals were allowed from the circuit court to the supreme court; but in neither case was a bond to be given except for the payment of costs, and in the case of an appeal from the judgment of the county court the appellant's bond had to contain a condition that he would "prosecute his appeal with due diligence to a decision." The bond in the circuit court, however, as to cases tried there in the first instance, contained no such condition. Laws 1867, p. 114; Boggs v. Brooks, 45 Mo. 232. Section 6 of the act just referred to made provision for the issuance of writs of error from the decisions of the circuit courts in such cases, as in any other civil proceeding; and section 7 of the act also contained a provision that when an appeal should be applied for, at the time of the judgment or decision, no steps should be taken or proceeding had to enforce such judgment, etc., until the time for taking such appeal had lapsed; thus clearly implying that, if the application for an appeal were not made at the time of judgment rendered, there would be no barrier to the issuance and enforcement of a proper writ in favor of the contestant.

But it is needless further to discuss the act of 1867, since several of its provisions have been eliminated by the revision of 1879, which, in section 5560 (now section 4744, Rev. St. 1889), declares that "in all cases of contested elections the right of appeal shall exist, and appeals may be taken in the same time or manner and to the same courts as is or may be provided by law with respect to appeals in ordinary civil actions; and writs of error shall lie in such cases as in civil actions. In every such case of appeal a bond with sufficient sureties shall be given, conditioned for the payment of the costs accrued and to accrue in the cause; and a new bond shall be given when required by any court in which the cause may be pending." And this elimination doubtless occurred by operation of section 3160, Rev. St. 1879 (now section 6606, Rev. St. 1889), providing that "all acts of a general nature, revised and amended and re-enacted at the present session of the general assembly, as soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject; but the provisions of the Revised Statutes, so far as they are the...

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