Earl v. Hart

• Decision Date: 07 June 1886
• Citation: 89 Mo. 263,1 S.W. 238
• Parties: EARL and others v. HART and another.
• Court: Missouri Supreme Court

1 S.W. 238

89 Mo. 263

EARL and others v. HART and another.

Supreme Court of Missouri.

June 7, 1886.

1. APPEAL — FROM JUSTICE OF THE PEACE — EFFECT ON JUDGMENT.

Under the laws of Missouri (Revision 1879, § 3041) a regularly perfected appeal from a judgment rendered by a justice of the peace absolutely vacates such judgment during the pendency of such appeal.

2. SAME — TRANSCRIPT — LIEN.

Such a vacating of the judgment, by appeal therefrom, destroys a lien previously acquired by the filing of a transcript under the statute. Section 2998, Revision 1879.

Appeal from St. Louis court of appeals.

Proceedings in partition. Cross-equities between two defendants, one claiming under an execution sale and the other by direct conveyance from the execution debtor.

Chas. L. Moss, for respondent. G. M. Stewart, for appellant.

BLACK, J.

This was a suit for the partition of certain real estate. The pleadings disclosed adverse claim of the defendants, George W. Hart and Nelson R. Collins, to the one-third interest formerly owned by Henry P. Hart. There was an order of sale of the whole of the premises, the court reserving the right to determine to which of the claimants the disputed interest belonged, and to whom the proceeds should be paid. Subsequently, George W. Hart filed in the cause his verified petition, claiming the money, and setting out his title, which the proof shows to be as follows: On the fourth January, 1879, Thompson recovered a judgment by default before a justice of the peace against Henry P. Hart, and on the same day he filed a transcript of that judgment with the clerk of the circuit court. A motion to set aside the default being overruled, Henry P. Hart appealed to the circuit court, with George W. Hart as surety on the appeal-bond. In March, 1879, the judgment of the justice was affirmed in the circuit court against Henry P. and George W. Hart. Executions were issued on this judgment, and the interest of Henry P. Hart was sold to third persons, who conveyed the same to George W. Hart. Collins filed a like petition. His petition and proofs show a deed from Henry P. Hart to Spelman, dated fifteenth January, 1879, recorded twentieth February, 1879, conveying the same interest in the property, and a deed from Spelman to Collins, dated in August, 1879. George W. Hart filed answer to the petition of Collins, and in that he alleges that the deeds from Henry P. Hart to Spelman, and from the latter to Collins, were made and contrived by the parties thereto to defraud the creditors of Henry P. Hart. Collins replied by general denial. The court found the issues for Collins, and ordered the money to be paid to him.

1. Upon filing a transcript of a justice's judgment with the clerk of the circuit court the judgment from that time becomes a lien upon the real estate of the defendant, and execution may issue thereon from the circuit court, and the judgment may be revived, the same as judgments of the circuit court. Sections 2998, 2999, Rev. St. As the deed from Henry P. Hart to Spelman was made and recorded after the filing of the transcript, but before the judgment of affirmance in the circuit court, the question is whether the appeal destroyed the effect and lien created by filing the transcript of the justice's judgment. This must be determined by a proper construction of the statute with respect to appeals from justices of the peace. The appeal-bond is conditioned that the appellant will prosecute his appeal with due diligence, and that if the judgment of the justice be affirmed, or upon a trial a new judgment be given against him, he will pay such judgment, and that, if the appeal be dismissed, he will pay the judgment of the justice, and costs. Section 3041. If he fail to prosecute the appeal, the justice's judgment is affirmed. Section 1000; Westpheling v. Enright, 60 Mo. 280. If he fail to give the statutory notice of the appeal within the proper time, the appeal may be dismissed, or the judgment of the justice affirmed, at option of appellee. Section 3057. "Upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew." Section 3052. If the judgment be either affirmed, or, on a trial anew, judgment be given against the appellant, the judgment of the circuit court must be rendered against the appellant, and his sureties on the appeal-bond. Section 3062. Amendments may be made in the circuit court, and the trial proceed there according to the practice of that court. The plaintiff may, in the circuit court, dismiss his suit, though the judgment of the...