Brill v. Meek
| Decision Date | 31 January 1855 |
| Citation | Brill v. Meek, 20 Mo. 358 (Mo. 1855) |
| Parties | BRILL, Respondent, v. MEEK, Appellant. |
| Court | Missouri Supreme Court |
1.After an appeal has once been granted, the power of the inferior court over the subject is exhausted.If the appeal is dismissed, or if from any cause the party loses the benefit of it, he cannot take another appeal, but must resort to his writ of error.
Appeal from Weston Court of Common Pleas.
A judgment was rendered for Brill below, in November, 1853, and Meek took an appeal to the Supreme Court, where it was dismissed because not prosecuted.In February, 1854, Meek again appeared before the court below, and filed a new bond and prayed another appeal, which was granted.Hall and Vories, for defendant, now moved to dismiss the second appeal, on the ground that only one appeal could be allowed, even within the year; as otherwise the respondent might be harassed by successive appeals, and subjected to great trouble and expense.
Gardenhire, for appellant.
If an appeal is dismissed, the penalty is the payment of costs.This is sufficient to protect the respondent from oppression.This court must be open to the appellant“one year,” and a certain remedy afforded for the...
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23 cases
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Reed v. Bright
...this case the term had ended. Under such circumstances the general rule is that the circuit court is divested of jurisdiction, and the jurisdiction as to the judgment and the cause is vested in the appellate court.
Brill v. Meek, 20 Mo. 358; Ladd v. Couzins, 35 Mo. 513; Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303; State ex rel. v. Gates, 143 Mo. 63, 44 S. W. 739; Donnell v. Wright, 199 Mo. 304, 97 S. W. It can be safely said that the appeal at... -
Burdett v. Dale
...in this case. If appellants desire to sue out a writ of error in such circumstances, they should first be off with the appeal, as indicated by the comments of the court in State v. Silverstein (K. C.) 77 Mo. App. 304. In
Brill v. Meek, 20 Mo. 358, it was held that after an appeal had been granted, and plaintiff had lost the benefit thereof, he could not indulge in a second appeal, but was "driven to his writ of error." The facts in respect of which the court was then writing... -
State v. Rosser
...within the time prescribed, the appellate court shall, upon the filing of the record therein, affirm the judgment appealed from, unless good cause to the contrary be shown. The court there observed that the statement in the opinion in
Brill v. Meek, supra, concerning the appellant's being driven to his writ of error on loss of appeal "from any cause" went beyond the scope of the question there involved and was therefore dictum, and further, that it would be inconsistent to grant aentirely on adjudications relating to appeals in civil cases. The first case cited in support of the conclusion therein reached by the court is Schmeer v. Schmeer, 16 Or. 243, 17 P. 864, and the only authority cited in that case is Brill v. Meek, 20 Mo. 358. In the latter case the opinion of the Missouri court is very brief and reads as "When an appeal has once been granted, the power over the subject is functus officio and can not be exercised a second time. This has been... -
Bray v. Cox
...has been dismissed for want of prosecution'. It was likewise held in Schmeer v. Schmeer, 16 Or. 243, 17 P. 864 that '(w)hen a party perfects an appeal, and then abandons it, is right of appeal is exhausted', and so it should be.
Brill v. Meeks, 20 Mo. 358, 359reaches the same result and states that '(w)hen appeal has once been granted, the power over the subject is Functus officio and cannot be exercised a second time'. Similarly, after carefully and exhaustively analyzing...
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