Crow v. Reliable Jewelry Co.

• Decision Date: 13 February 1906
• Citation: 116 Mo. App. 624,92 S.W. 742
• Parties: CROW v. RELIABLE JEWELRY CO. et al.
• Court: Missouri Court of Appeals

92 S.W. 742

116 Mo. App. 624

CROW v. RELIABLE JEWELRY CO. et al.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. JUSTICES OF THE PEACE—APPEAL—JUDGMENT AGAINST SURETY.

Since Rev. St. 1899, §§ 4081, 4082, 4083, only provide for judgment against the surety on an appeal bond on appeal from a justice, in connection with a judgment against the principal, an action may not be dismissed as to appellant, and judgment rendered against the surety alone.

2. SAME—NEGLIGENCE OF SURETY.

Where appellee on an appeal from a justice wrongfully dismissed the action against appellant, and took a judgment against the surety on the appeal bond alone, the fact that the surety did not know of the judgment until after its rendition did not show negligence on his part.

3. JUDGMENT—EQUITABLE RELIEF.

Where, on appeal from a justice, appellee dismissed the action as against appellant and obtained a judgment against the surety on the appeal bond alone, in a suit by the surety to set aside the judgment, the petition having alleged fraud in procuring the judgment it was not demurrable though the nature of the fraud did not appear.

4. APPEAL—REVIEW—RECORD—DEMURRER.

A ruling on a demurrer to a petition is reviewable without any motion for a new trial or bill of exceptions.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Suit by Charles A. Crow against the Reliable Jewelry Company and others. From a judgment sustaining a demurrer to the petition petitioner appeals. Reversed.

C. G. Shepard, for appellant. Faris & Oliver, for respondents.

GOODE, J.

A demurrer having been sustained to the appellant's petition, he stood on his pleading and refused to amend; whereupon the petition, which was in the nature of a bill in equity, was dismissed, and final judgment entered against him. He appealed. According to the averments of the petition, the Reliable Jewelry Company is a corporation organized and existing under the laws of the state of Illinois, and J. A. Franklin, the other defendant is the sheriff of Pemiscot county. Heretofore, C. G. Shepard was engaged in the mercantile business in Caruthersville, in that county under the style of C. G. Shepard & Co. The Reliable Jewelry Company sued said Shepard before a justice of the peace for an alleged debt and judgment before the justice went against Shepard and in favor of the jewelry company. Shepard appealed to the circuit court of Pemiscot county and the appellant in this action, Charles A. Crow, signed the appeal bond as his surety. The appealed case came on for trial in the circuit court at the November term, 1903, and on the 28th day of November, a trial was had resulting in a judgment against Crow in favor of the Reliable Jewelry Company. Said company, as plaintiff in the action pending on the account against Shepard, dismissed the action as to him, though he was the sole defendant and the principal on the appeal bond, and had judgment rendered against Crow alone as surety on the bond. Afterwards the Reliable Jewelry Company caused an execution to be issued on the judgment against Crow, and placed the writ in the hands of Franklin, the sheriff, for collection. When the petition in the present cause was filed, Franklin was threatening and attempting to levy the execution on the property in order to collect the judgment. The petition further alleges that before appellant became aware judgment had been rendered against him, the time for taking an appeal had elapsed. The appellant was not present when the cause was dismissed as to Shepard and judgment rendered against appellant, and he knew nothing of the judgment until the sheriff had attempted to...