Dunlap v. Weber Gas & Gasoline Engine Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJohnson
Citation94 S.W. 761
PartiesDUNLAP v. WEBER GAS & GASOLINE ENGINE CO.
Decision Date07 May 1906
94 S.W. 761
DUNLAP
v.
WEBER GAS & GASOLINE ENGINE CO.
Kansas City Court of Appeals. Missouri.
May 7, 1906.

1. APPEAL—JURISDICTION—WRIT OF ERROR.

Where jurisdiction is vested in the appellate court by an appeal, a writ of error, while the appeal is pending, is improvidently sued out.

2. SAME — STIPULATION DISCHARGING SURETIES ON APPEAL BOND—EFFECT.

Jurisdiction of the appellate court over a cause, conferred by the order granting an appeal therein, was not affected by a stipulation between the parties, whereby defendant waived all right of action on the appeal bond, and agreed to the entry of an order discharging the sureties from all liability; the stipulation relating solely to the bond, and having no bearing on the question of jurisdiction.

3. SAME—CANCELLATION OF APPEAL BOND— EFFECT.

After jurisdiction of the appellate court over a cause was conferred by an order granting an appeal, an agreement of the parties to the action to cancel the appeal bond accomplished no greater result than to leave the cause where it would have been had no bond been given.

4. SAME—DEFAULT OF APPELLANT—AFFIRMANCE.

Where plaintiff failed to comply with the statutes and rules of court in the prosecution of his appeal from a judgment, defendant, on motion, was entitled to an affirmance of such judgment, and, no good cause excusing plaintiff's noncompliance appearing, his motion to dismiss the appeal, filed after defendant's motion to affirm, could not deprive defendant of his right to an affirmance, which became complete on filing of his motion, together with the certified copy of the judgment and appeal order.

Error to Circuit Court, Jackson County; James H. Slover, Judge.

Action by John R. Dunlap against the Weber Gas & Gasoline Engine Company. Judgment for plaintiff, and he brings error. Hearing on defendant's motion to affirm. Motion to dismiss appeal overruled, and judgment affirmed.

Lathrop, Morrow, Fox & Moore, for plaintiff in error. Karnes, New & Krauthoff, for defendant in error.

JOHNSON, J.


On April 18, 1905, this cause was tried, and plaintiff recovered judgment against defendant in the sum of $75.10. In due time plaintiff, being dissatisfied with the amount of his recovery, filed motions for a new trial and in arrest of judgment, which were overruled, and on July 10, 1905, he filed his affidavit for appeal, which was allowed to this court, and leave was granted him to file his bill of exceptions in 90 days, and the same was filed on...

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2 practice notes
  • Lobell v. Stock Oil Company, 668
    • United States
    • United States State Supreme Court of Wyoming
    • April 25, 1911
    ...Burdett v. Dale, (Mo.) 69 S.W. 480; Smith v. Flick, (Mo.) 83 S.W. 73; Kehler v. Walls, (Mo.) 94 S.W. 760; Dunlap v. Weber &c. Co., (Mo.) 94 S.W. 761; Collins v. Gladiator &c. Co., (S. D.) 103 N.W. 385.) When an order of dismissal is entered in the Supreme Court it operates as a decree of af......
  • Madre v. Meyer
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 7, 1912
    ...imposed by the statute for failure to prosecute the appeal.” And in the case of Dunlap v. Weber Gas & Gasoline Engine Co. (Mo. App.) 94 S. W. 761, the Kansas City Court of Appeals says: “Plaintiff having failed to comply with the statutes and rules of this court in the prosecution of his ap......
2 cases
  • Lobell v. Stock Oil Company, 668
    • United States
    • United States State Supreme Court of Wyoming
    • April 25, 1911
    ...Burdett v. Dale, (Mo.) 69 S.W. 480; Smith v. Flick, (Mo.) 83 S.W. 73; Kehler v. Walls, (Mo.) 94 S.W. 760; Dunlap v. Weber &c. Co., (Mo.) 94 S.W. 761; Collins v. Gladiator &c. Co., (S. D.) 103 N.W. 385.) When an order of dismissal is entered in the Supreme Court it operates as a decree of af......
  • Madre v. Meyer
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 7, 1912
    ...imposed by the statute for failure to prosecute the appeal.” And in the case of Dunlap v. Weber Gas & Gasoline Engine Co. (Mo. App.) 94 S. W. 761, the Kansas City Court of Appeals says: “Plaintiff having failed to comply with the statutes and rules of this court in the prosecution of his ap......

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