Blanchard v. Wolff
| Decision Date | 21 March 1876 |
| Citation | 1 Mo.App. 520 |
| Parties | CHARLES H. BLANCHARD, Respondent, v. ABRAHAM S. WOLFF, Appellant. |
| Court | Missouri Court of Appeals |
A sued B in the St. Louis Circuit Court. He became nonsuit with leave, etc., and the general term set aside the non-suit. B appealed to the Supreme Court, but failed to give the bond required by section 2, p. 17, Acts of 1869. Held, that the Circuit Court had no power to grant an appeal without the appellant giving such bond.
APPEAL from St. Louis Circuit Court.
Cause remanded for trial.
Marshall & Barclay, for appellant, cited: Bateson v Clark, 37 Mo. 31; Richardson v. George, 34 Mo 108; Brady v. Connelly, 52 Mo. 19; Cowen v. St. Louis & Iron Mountain R. R. Co., 48 Mo. 556; Matlock v. Williams, 59 Mo. 105; Acock v. Acock, 57 Mo. 154; Burnes v. Whelan, 52 Mo. 520; Carver v. Thornhill, 53 Mo. 283; State v. Marchall, 36 Mo. 400; Collins v. Saunders, 46 Mo. 389; Wag. Stat. 1021, sec. 48, p. 1034, sec. 3, p. 1060, secs. 44, 45; Coleman v. McKnight, 4 Mo. 83; Routsong v. Pacific R. R. Co., 45 Mo. 236; Henri v. Grand Lodge, 59 Mo. 581; United States v. Gamble et al., 10 Mo. 457; London v. King, 22 Mo. 336; Christy v. Myers, 21 Mo. 112; Blonset v. Zink, 55 Mo. 455; Brown v. Foote, 55 Mo. 178; Berry v. Smith, 54 Mo. 148; Tilford v. Ramsey, 43 Mo. 410; McKay v. Underwood, 47 Mo. 185; Collins v. Bowmer, 2 Mo. 195; Boggers v. Cox, 48 Mo. 278; Rankin v. Perry, 5 Mo. 501; Perry v. Alrood, 5 Mo. 503; Strouse v. Drennan, 41 Mo. 289; Pearson v. Lovejoy, 53 Barb. 407; Isbella v. Pecot, 2 La. An. 387; Graves v. Black, 1 Mo. 221; Blunt v Shepard, 1 Mo. 219; Ringgold's Case, 1 Bland (Md.), 5; State v. Saline County, 51 Mo. 350-374; Sedgw. on Stat. & Const. Law (2d ed.), 40; Headlee v. Cloud, 51 Mo. 301; Wilson v. Allen, 3 How. (N. Y.) Pr. 369; Irwin v. Bank, 6 Ohio St. 81-89; Brightley's Dig. 258, sec. 2; Martin v. Hunter, 1 Wheat. 361; Seymour v. Freer, 5 Wall. 822; Anson v. R. R. Co., 23 How. 1; Manderville v. Riggs, 3 Pet. 490; Price v. R. R. Co., 40 Ill. 44; Wilgus v. Gettring, 19 Iowa 82; Brobst v. Brobst, 2 Wall. 96; Pratt v. R. R. Co., 21 N.Y. 305; Dougherty v. Volloton, 38 N.Y. 455; Gillilan v. Gray, 13 Ill. 705; French v. Snell, 30 Me. 100; Commonwealth v. Dunham, 22 Pick. (Mass.) 11; Wag. Stat. 850, sec. 17.
J. S. Garland, for respondent, cited: Story on Bail. (8th ed.), secs. 2, 4, 61, 107, 117, 118, 261; Foster v. Essex Bank, 17 Mass. 479, 498; 2 Pars. on Con. 96; Nicholson v. Chapman, 2 N.H. 254; Rivera v. Ghio, 3 E. D. Smith (N. Y.), 264; Esmay v. Fanning, 9 Barb. 176; Wiser v. Chesley, 53 Mo. 547; Edw. on Bail. 88; Beardslee v. Richardson, 11 Wend. 25; McNabb v. Lockhart, 18 Ga. 495; Scott v. Crane, 1 Conn. 255; Slingerland v. Morse, 8 Johns. 474; Rankin v. Perry, 5 Mo. 501; Tilford v. Ramsey, 43 Mo. 410; McKay v. Underwood, 47 Mo. 185; Coleman v. McKnight, 4 Mo. 236; Henri v. Grand Lodge, 59 Mo. 581; Routsong v. Pacific R. R.Co. 54 Mo. 236; Walter v. Cathcart, 18 Mo. 256; Thurman v. Jones, 48 Mo. 235; Wordmanser v. Hitchcock, 40 Mo. 179; St. Jo. R. R. Co. v. Mahoney, 42 Mo. 467; Jones v. Fuller, 38 Mo. 363.
It appears from the record before us that Blanchard sued Wolff for the conversion of certain personal property; that Wolff denied the conversion and set up new matter, to which Blanchard replied; that a trial was had, at which Blanchard became nonsuit; that he filed a motion to set the nonsuit aside, which the court overruled; and that he presented, and the court signed, a bill of exceptions which omitted to set forth the motion to set the nonsuit aside, and failed to save an exception to the action of the court overruling the motion; that the court in general term reversed the judgment of the court at the special term; that the defendant, Wolff, filed a motion for rehearing, and that this motion was overruled by the court in general term. Thus far we are able to go, but here we are obliged to stop. There is no appeal in this case which authorizes us to " hear and determine" the matters which have been argued, and argued with ability, by the counsel for appellant. Obviously there is no final judgment in the cause. Plaintiff took a nonsuit with leave, etc. The refusal of the court at special term to set this nonsuit aside was final as to him. He properly went to the general term to get rid of this judgment. When the general term reversed the judgment of the special term, the nonsuit was set aside and the cause reinstated. It stood for trial de novo. Clearly there was no final judgment, and it is only from " final judgments" that an appeal is allowed by the general law. 2 Wag. Stat. 1059, sec. 9. But an appeal is allowed from the judgments of the St. Louis Circuit Court in general term, although such judgments may not be final, under the peculiar provisions of section 2 of the act of February 25, 1869. Session Acts 1869, p. 17. In order to take an appeal under this section, of course compliance with its conditions must be shown. Only by observing those conditions could the defendant take such an appeal. One of these is the giving of a bond in a penal sum sufficient to secure to the plaintiff the satisfaction of any judgment that may be rendered in the cause, to be approved by the court. If the court had approved a bond in an insufficient peal sum, we might think ourselves warranted in allowing the appeal to stand, on condition of the appellant perfecting a proper bond here; but that is the utmost stretch of indulgence. Without any bond at all, the Circuit Court had no power to allow an appeal, and in this case no bond was offered or approved; consequently, there is no appeal from the decision of the Circuit Court in general term, and we order that fact to be certified to the Circuit Court, so that it may proceed with the determination of the cause in such manner as the state of the record will allow.
All the judges concur.
Our opinion in this case was founded on the construction we gave to the acts organizing the St. Louis Circuit Court under the Constitution of 1865, and the several acts since passed prescribing the practice therein. In their motion for a rehearing, the counsel for appellant urge that these acts are materially modified by the act of February 28, 1871. We state briefly our reasons for overruling this motion, founded, as we conceive it to be, upon a misconception of these statutes.
The acts which ascertain the practice in the St. Louis Circuit Court are dated, respectively, December 19, 1865, February 25, 1869, and March 4, 1869. The last two dates refer but to one act; the latter statute being passed to remedy a trivial mistake in the first, not, however, material to the subject under discussion.
The title of the act of December 19, 1865, is: " An act to provide for the reorganization of the St. Louis Circuit Court, and regulate proceedings therein." It is hardly necessary to recall to the memory of the bar that prior to the Constitution of 1865 there were three courts of civil jurisdiction in St. Louis county, to wit, the Circuit Court, the Court of Common Pleas, and the Land Court; that the object of the Constitution of 1865 was to abolish the last two, and to introduce, in respect of the Circuit Court of St. Louis county, a system of practice in imitation of that adopted in New York and Ohio--creating for the Circuit Court a special and a general term, and making the latter, in effect, an appellate court. This was all foreign to the practice which had for more than sixty years prevailed in Missouri. At the same time, for the rest of the State, District Courts, a system of intermediate appellate courts between the Circuit Court and the Supreme Court, were established. In order to give full effect to the constitutional requirements, some legislation was necessary; and this, as far as St. Louis was concerned, was furnished by the act of December 19, 1865. This act referred to St. Louis county only, and was, therefore, of a local and special nature. In the rest of the State, provision was also made by law for the establishment of District Courts and the practice therein. There was no District Court in St. Louis, nor was any case tried in this county liable to be reë xamined by a District Court. In the rest of the State, on the other hand, the distinction between special and general term of the Circuit Court was unknown.
The new practice was, from the first, disrelished by the bar of Missouri; but organic reforms were needed to get rid of its most objectionable features. In 1869, however, legislation was obtained which was certainly a considerable alleviation of the evils imposed by the system as adopted in 1865. The act of 1869 was entitled: " An act to amend ‘ an act to provide for the reorganization of the St. Louis Circuit Court, and regulate proceedings therein,’ approved December 19, 1865," and, among other things amended section 14 of that act so as to make it read: " A judgment or decree rendered or order made by said court at special term may be reversed, vacated, or modified at general term, for errors appearing in the records at special term or presented by exceptions taken thereat, * * * but from * * * any judgment rendered or decree or order made at general term, reversing or modifying a judgment rendered or decree or order made at special term, the party or parties aggrieved thereby may appeal to the Supreme Court in the same manner and with the like effect as provided for by law in respect to appeals from final judgments rendered by the said court at general term; provided, that no appeal provided for in this section shall be allowed unless the party or parties taking such appeal shall first secure to the adverse party or parties in the cause the due...
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