Arkansas Valley Trust Co. v. Corbin

• Decision Date: 03 May 1915
• Citation: 179 S.W. 484,192 Mo.App. 153
• Parties: ARKANSAS VALLEY TRUST COMPANY, Respondent, v. W. D. CORBIN et al., Appellants
• Court: Kansas Court of Appeals

179 S.W. 484

192 Mo.App. 153

ARKANSAS VALLEY TRUST COMPANY, Respondent, v. W. D. CORBIN et al., Appellants

Court of Appeals of Missouri, Kansas City

May 3, 1915

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

MOTION TO AFFIRM DENIED (Transferred to Supreme Court).

Case certified to the Supreme Court.

Sebree Conrad & Wendorff for appellants.

John G Paxton for respondent.

OPINION

ELLISON, P. J.

--This is an appeal, prosecuted by defendant Corbin, from a judgment for $ 2656.25 and costs rendered against him and his co-defendant in the circuit court of Jackson county, December 4, 1913. The appeal was allowed December 19, 1913, and the appeal bond, fixed at $ 3000 was filed and approved. The appeal was returnable to the March, 1914, term, of this court (sec. 2047, Revised Statutes 1909) and on February 3, 1914 the appellant duly filed in the office of our clerk a short form transcript which conformed to the requirements of section 2048, Revised Statutes 1909. The case reached this court too late to go on the docket of the March term (sec 2075, Revised Statutes 1909) and was placed on the docket for the October term and set for hearing December 10, 1914. Appellant failed entirely to comply with the provisions of Rule 15, requiring the service and filing of abstracts of record and briefs and respondent filed a motion for an affirmance of the judgment. The question raised by the motion is whether a failure to comply with Rule 15 may be a sufficient ground for an affirmance of the judgment.

The statute, section 2047, Revised Statutes 1909, provides for filing transcripts of appeal in the appellate court and also provides that the penalty for failure to do so shall be an affirmance of the judgment, if the respondent will present a transcript and ask for such affirmance.

The short form of appeal, together with the manner of presenting the record of the trial court, is a special and comparatively new method of appellate procedure. Under the old method, it was necessary to bring up the whole record and such thing as an abridged record was not known to the statute. Influenced by the desire to facilitate appeals, to reduce the labor and to cut the expense, the Legislature enacted the statute now incorporated in section 2048, Revised Statutes 1909, wherein a short form of record consisting of a memoranda of the judgment appealed from, certified by the clerk, may be filed in the appellate court. Then, in order that such appellate court might be advised of the case and the grounds of appeal, it was provided, in the same section, that a printed abstract of the record in the trial court should be prepared by the appellant "within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court." It is then provided in section 2049, of the statute, that the appellate court "shall from time to time make and promulgate suitable rules and regulations for carrying into effect the provisions" of this statute. By authority of said section 2048, we have prescribed in rule 15, the time when the abstract must be served on the opposite party and when it shall be filed in court. And by authority of the last of these sections, we have, in rule 18, fixed upon and named the penalty for a failure to serve and file such abstracts in these words: "The court, when the cause is called for hearing, will dismiss the appeal or writ of error, or, at the option of respondent, or defendant in error, continue the cause, at the costs of the party in default."

It seems to me that now, without warning, to bring into existence and to enforce a different and far more drastic penalty, viz., an affirmance of the judgment, would be in its nature ex post facto.

As first above stated, the statute (sec. 2047) authorizes an affirmance of the judgment for failure to file the transcript and sections 2048, 2049, authorize the court to pass rules prescribing penalties enforcing the service and filing of abstracts, and the court has prescribed that the penalty shall be a dismissal of the appeal. It seems to me that that is all the penalty we can inflict.

The suggestion has been made that in order that the respondent, plaintiff, may have a right of action on the appeal bond, there must be an affirmance of the judgment, for, respondent says, the dismissal of the appeal will not give that right; and he cites a decision of the Springfield Court of Appeals in support of that view; Hill v. Keller, 157 Mo.App. 710, 139 S.W. 523. That interpretation of the statute does affect the question now before us.

The statute (sec. 2042, Revised Statutes 1909) in relation to appeal bonds prescribes that the bond shall be in double the amount of the judgment, and shall be conditioned, "that the appellant will 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, that he will comply with and perform the same, so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by any appellate court."

Judge NIXON, who wrote the opinion in the case referred to, takes the view that a dismissal of an appeal is "a decision" and that therefore the condition of the bond has been fulfilled and no liability is incurred. If it be conceded, that a judgment of dismissal is a decision of the case, within the meaning of the bond, yet, it seems to me that the learned Judge...