American Brewing Company v. Talbot
| Decision Date | 10 December 1894 |
| Citation | 28 S.W. 585,125 Mo. 388 |
| Parties | American Brewing Company v. Talbot et al., Appellants |
| Court | Missouri Supreme Court |
Motion sustained.
W. C. & James C. Jones for appellants.
Lubke & Muench for respondent.
OPINION
Barclay
Motion for Appeal Bond.
Barclay J. -- This action was brought in the circuit court, city of St. Louis, to recover of defendants the value of certain malt alleged to have been delivered to them.
The petition was answered, and in due course the case came to trial on the issues made by the pleadings. A verdict for plaintiff for $ 4,448.30 resulted, and thereupon there was judgment for $ 4,316.65, a small remittitur having been meanwhile entered.
After the usual motions, defendants took an appeal to the St. Louis court of appeals. At that time they filed an appeal bond in the circuit court.
The bond was signed by one of the defendants and by two sureties. It bound them to plaintiff in the sum of $ 10,000. The material parts of the collateral condition expressed in the bond are as follows:
"Now, if said appellant shall prosecute this appeal with due diligence to a decision in the St. Louis court of appeals, and shall perform such judgment as shall be given by the said St. Louis court of appeals, or such as the said St. Louis court of appeals may direct the circuit court, city of St. Louis, to give, and if the judgment of the said circuit court, or any part thereof be affirmed, and said appellant 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 by the said St. Louis court of appeals, then this obligation to be void, otherwise to remain in full force and effect."
The bond was approved by the court, allowing the appeal.
On reaching the court of appeals, the cause was transferred to this court in conformity with the constitution, as the case plainly involves more than $ 2,500. Const. 1875, art. 6, sec. 12, and Amend. 1883, sec. 6.
The plaintiff has moved to require appellants to furnish a new and perfect appeal bond, as the one on file is not a sufficient statutory bond to maintain a supersedeas.
Under the rulings of the majority of the supreme court in Nofsinger v. Hartnett (1884), 84 Mo. 549, and Schuster v. Weiss (1893), 114 Mo. 158, 21 S.W. 438, as to the effect to be given to certain appeal bonds, it is very clear that the one here in question does not fully meet the requirements of the law. R. S. 1889, sec. 2249.
Among other variations from the statute, it first names the St. Louis court of appeals instead of "the appellate court;" and, at the close, again mentions the former court, instead "of any appellate court."
There are several grounds on which a case may be sent to the supreme court from either court of appeals, even though the proceeding may be one in which the supreme court would have no jurisdiction on a direct appeal. Const. Amend. 1883, secs. 3 and 6; and R. S. 1889, sec. 3300.
In other cases it is not always clear, from the nature of the proceedings, whether the supreme court or court of appeals is the proper one to entertain the appeal; and, until that question is determined, the trial court can not know with certainty which appellate court should be named in a bond given for a supersedeas.
Hence the language of the present statutes (sections 2249, 2287 and 2250) is adapted, when read in conjunction with the sections concerning transfers between the appellate and supreme courts (R. S. 1889, secs. 3299, 3300), to afford security to litigants, obtaining judgments on the circuit, no matter to which appellate court the cause may finally go.
Judges, in approving appeal bonds, should, hence, insist on as close a conformity of such bonds to the exact statutory language (R. S. 1889, sec. 2249) as the nature of each case will permit.
In the case in hand the court approved...
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