Dunlap v. Weber Gas & Gasoline Engine Co.

• Decision Date: 07 May 1906
• Citation: 94 S.W. 761
• Court: Missouri Court of Appeals
• Parties: DUNLAP v. WEBER GAS & GASOLINE ENGINE CO.

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 October 7th, following. The amount of the appeal bond was fixed by the court, and the bond was filed and approved in the time required. Plaintiff failed to take any other step towards the prosecution of his appeal. On October 11, 1905, he sued out a writ of error returnable to the March, 1906, term of this court. March 28, 1906, defendant in error brought up a...