67 Mo. 48 (Mo. 1877), Pratt v. Canfield

Citation:67 Mo. 48
Opinion Judge:HENRY, J.
Party Name:PRATT v. CANFIELD, Appellant.
Attorney:Charles L. Dobson for appellant. S. P. Huston for respondent.
Court:Supreme Court of Missouri
 
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Page 48

67 Mo. 48 (Mo. 1877)

PRATT

v.

CANFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1877

Appeal from Linn Court of Common Pleas. --HON. THOMAS WHITAKER, Judge.

Charles L. Dobson for appellant.

S. P. Huston for respondent.

HENRY, J.

The plaintiff obtained a judgment in the Court of Common Pleas of Linn county, from which defendant appealed to the circuit court of said county, where said judgment was affirmed, and defendant prosecuted an appeal to this court, and pending the cause in this court, plaintiff caused an execution to issue from the Common Pleas Court on the judgment there. Defendant filed his motion in said Common Pleas Court to quash said execution, which the court overruled, and from the judgment of the court overruling said motion, defendant has appealed to this court.

By section 15 of the act establishing the Linn County Court of Common Pleas, (Sess. Acts 1867, page 94) it is provided that " the circuit court of Linn county shall have superintending control over the said Common Pleas Court, and appellate jurisdiction from its final judgments and decisions, by appeal or writ of error, which shall be allowed and prosecuted in the same manner, and with the effect prescribed by law in cases of appeal, or writ of error from the circuit to the district court, but no appeal shall in any case operate as a supersedeas, or stay of execution, or other proceeding on the judgment or decision of said Court of Common Pleas." By the 5th section of the act, appeals or writs of error were also allowed from that court to the district court. The party who felt aggrieved by, could appeal from the judgment of that court, either to the circuit or district court, and now to the Supreme Court.

Plaintiff's counsel contend that under the 15th section plaintiff had a right to an execution, notwithstanding the appeal from the judgment of the circuit court to this court. Section 45, page 1069, Wag. Stat., provides that upon an appeal being made, the circuit court shall make an order allowing the appeal, and the allowance thereof shall stay the execution when the appellant or some responsible person for him together with two sufficient securities, to be approved by the court, shall, during the term, at which the judgment appealed from was rendered, enter into a recognizance to the adverse party, & c. This provision was complied with when the defendant...

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