Bauer v. Cabanne

• Decision Date: 02 June 1891
• Citation: 105 Mo. 110,16 S.W. 521
• Parties: BAUER v. CABANNE et al.
• Court: Missouri Supreme Court

16 S.W. 521

105 Mo. 110

BAUER v. CABANNE et al.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

LIABILITY ON APPEAL-BOND.

In forcible entry and detainer defendant appealed to the circuit court, which dismissed the appeal because not taken in time. Defendant thereupon appealed to the court of appeals, giving a supersedeas bond, the condition of which was that defendant would "pay all rents, profits, damages, and costs that may be adjudged against him, and otherwise abide the judgments of the St. Louis court of appeals." Held that, the court of appeals having affirmed the judgment of dismissal, the sureties on the bond were not liable for rents and profits, nor for damages and costs awarded by the justice of the peace.

Appeal from St. Louis circuit court.

W. C. Marshall, for appellants. John G. Chandler, for respondent.

GANTT, P. J.

This is an action on the following bond: "Know all men by these presents that we, Sarpy C. Cabanne as principal, and Virginia E. Cabanne and ____ as sureties, are held and firmly bound unto C. Bauer, plaintiff herein, in the sum of forty-five hundred dollars, ($4,500,) for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated at St. Louis this 8th day of November, A. D. 1880. The condition of the above obligation is such that, whereas Sarpy C. Cabanne has appealed from the judgment rendered against him and in favor of C. Bauer in the circuit court, city of St. Louis, in an action of unlawful detainer, now, if said appellant shall prosecute his 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 St. Louis court of appeals, or such as the St. Louis court of appeals may direct the circuit court, city of St. Louis, to give, and if the judgment or any part thereof be affirmed, will comply with and perform the same, so far as it may be affirmed, and pay all damages and costs which may be awarded against him by the St. Louis court of appeals, and he shall neither commit nor suffer to be committed any waste or damage on the premises whereof restitution is adjudged, and pay all rents, profits, damages, and costs that may be adjudged against him, and shall otherwise abide the judgment of the St. Louis court of appeals in said cause, then this obligation to be void; otherwise to remain in full force and effect. VIRGINIA E. CABANNE. [Seal.] GEO. W. KERR. [Seal.] S. C. CABANNE. [Seal.] Approved in open court, Nov. 8, 1880. Attest: CHAS. F. VOGEL, Clerk." The breaches assigned are that said Sarpy C. Cabanne did not keep or comply with the condition of said bond, in this: that he did not perform said judgment of the St. Louis court of appeals, and did not comply with or perform the said judgment of the St. Louis circuit court, affirmed, as aforesaid, by the St. Louis court of appeals, and did not pay all damages or costs which were awarded against him by the said St. Louis court of appeals, and did not pay the rents, profits, and damages for the detention of said premises whereof restitution was adjudged. Plaintiff further avers that the costs of the said suit in the circuit court were $8.55; the costs of the said suit in the court of appeals was a large sum of money, to-wit, $100, — all which costs remain unpaid. Plaintiff further avers that the said defendant Sarpy C. Cabanne detained said premises and remained in possession thereof from the 28th day of September, 1880, to the 20th of May, 1881, when he made restitution thereof; for all which period said Charles Bauer was entitled to rents at the rate of $250 per month, as found by the said justice in his judgment aforesaid, as well as to the sum of $92, found by the said justice as damages for the detention of said premises prior to the 28th day of September, 1880; the aggregate of his damages for the breach of said bond being $2,041.88. On the ____ day of February, 1884, the said Charles Bauer died, leaving a will, which was afterwards, to-wit, on the 1st day of March, 1884, admitted to probate in the probate court of the city of St. Louis, by which will he appointed plaintiff as his executor, and plaintiff duly qualified as such in said probate court, and has ever since acted in that capacity. Plaintiff says that neither the said Sarpy C. Cabanne, nor his said sureties, Virginia E. Cabanne and George W. Kerr, ever paid to the said Charles Bauer, in his lifetime, or to plaintiff as his executor at any time since, the damages aforesaid, or any part thereof, although the same has been often demanded. Wherefore plaintiff prays judgment for the said sum of $4,500, the penalty of said bond, and that execution for the said damages, with interest thereon, and costs, and for such other relief as plaintiff may be entitled to.

The answer was joint, and consisted of a general denial and this special defense: "And for further answer and defense defendants say that from September 28, 1880, to May 20, 1881, Charles Bauer received and accepted each and every month the sum of fifty dollars for and as the rent of a portion of the premises described in plaintiff's petition, being, to-wit, the southern or rear end or third of said store-room numbered 524 Pine street; and that defendant Cabanne never occupied or withheld from said Charles Bauer said portion of said building after said 28th day of September, 1880; that said portion of said store-room was included in the judgment of the justice of the peace, and the rent thereof, at the rate of $50 per month, was included in the value of the monthly rents, which said justice of the peace assessed at $125 per month." At the trial, and before the introduction of any evidence, Virginia E. Cabanne and George W. Kerr, the sureties, objected to the introduction of any evidence, on the ground that the petition did not state any cause of action against the said defendants as sureties on the bond; that by the terms of the bond they were liable only for such judgment as the circuit court had rendered, or as the court of appeals might render, or as the court of appeals might direct the circuit court to enter; and that, inasmuch as the circuit court had rendered no judgment in the cause, and the court of appeals had entered no judgment in the cause, except a judgment for costs, the plaintiff was not entitled, under the terms of the bond here sued on, to recover any other judgment in this case. The court overruled the objection, and said defendants duly excepted at the time.

It appeared from the evidence that on the 28th of May, 1879, Charles Bauer leased to S. C. Cabanne a certain store-room, first floor, south-east corner of Sixth and Pine streets, being house numbered 524 Pine street, for a term of one year, commencing on the 20th of May, 1879, and ending on the 20th of May, 1880, for the sum of $75 per month. After the expiration of said lease, Cabanne remained in possession of said property, and paid rent thereon for the months ending June, July, August, and September 20, 1880, when, on the 22d of September, 1880, the suit for unlawful detainer was brought against him, and judgment recovered in said justice's court. From this judgment S. C. Cabanne attempted to appeal to the circuit court, city of St. Louis, but his appeal was dismissed in the circuit court, because not prosecuted within the time prescribed by statute. From this dismissal he appealed to St. Louis court of appeals. Pending the appeal from the circuit court to the court of appeals, to-wit, on the 15th day of April, 1881, Charles Bauer leased to Joseph P. Carr, for a term of two years, beginning on the 20th of May, 1881, the premises numbered 524 Pine...