Garnet v. Rodgers

• Decision Date: 31 March 1873
• Citation: 52 Mo. 145
• Parties: LESLIE GARNET, Plaintiff in Error, v. JNO. B. RODGERS, et al., Defendants in Error.
• Court: Missouri Supreme Court

52 Mo. 145

LESLIE GARNET, Plaintiff in Error,

v.JNO. B. RODGERS, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1873.

Error to St. Louis Circuit Court.

E. P. McCarty, for Plaintiff in Error.

The recognizance is a record which the defendants have voluntarily made and they are estopped from disputing it. (People vs. Liggett, 5 Barb., 362; Gildersleeve vs. The People, 10 Barb., 40; Adair, et al., vs. The State, 1 Blackf., 200; McCarty vs. The State, 1 Blackf., 338; People vs. Carpenter, 7 Cal., 402.)

The error complained of is really matter of exception and can only be reviewed here after an unsuccessful motion for a new trial in the Circuit Court. (State vs. Marshall, 36 Mo. 400; Bateson vs. Clark, 37 Mo., 31; State vs. Matson, 38 Mo. 489; Bishop vs. Ransom, 39 Mo., 416.)

E. B. Adams and H. H. Denison, for Defendants in Error.

The recognizance sued on, being for an appeal from the judgment of a Justice of the Peace by default against John B. Rogers, and there having been no motion made and overruled to set aside the default and grant a new trial, is void. (2 W. S., 847, §§ 2 and 3; Barnett vs. Lynch, 3 Mo., 369; Adams vs. Wilson, 10 Mo., 341; Cockrill vs. Owen, 10 Mo., 287; Nichols vs. Circuit Court, 1 Mo., 357; Commonwealth vs. Loveridge, 11 Mass., 337.)

VORIES, Judge, delivered the opinion of the court.

This action is brought in the St. Louis Circuit Court on an appeal bond or recognizance executed before a Justice of the Peace by defendant Rogers, as principal, and the other defendants as his sureties.

The petition charges that plaintiff, on the 24th day of March, 1871, obtained a judgment against defendant Rogers before one McAuliffe, a Justice of the Peace within and for St. Louis County, for $150 65-100 in an action upon an account. That on the 2nd day of April, 1870, said Rogers appealed said case to the St. Louis Circuit Court, and thereupon with the other defendants entered into a recognizance before said Justice under their hands and seals, whereby said Rogers as principal, and the other defendants as sureties, acknowledged themselves indebted to plaintiff in the sum of three hundred and fifty dollars, upon the condition, as follows: “Whereas, John B. Rogers has appealed from the judgment of Daniel McAuliffe Justice of the Peace, in an action between Leslie Garnet, & Co., plaintiffs, vs. John B. Rodgers defendant; now if on such appeal the judgment of the Justice be affirmed, or if on the trial anew in the St. Louis Circuit Court, judgment shall be given against the appellant and he shall satisfy such judgment, or if his appeal shall be dismissed and he shall pay the judgment of the Justice, together with the costs of the appeal, the recognizance shall be void.” That said bond was approved by the Justice and is filed with the petition. That afterwards, on the 17th day of June, 1870, the said appeal of said defendant Rodgers, from the judgment of said Justice, was by the order and judgment of said Circuit Court dismissed; that said appellant Rodgers has failed and refused to pay said judgment of said Justice, or the costs of the appeal, or any part of the same, but said judgment still remains unpaid and in full force, whereby an action has accrued, &c. Judgment is prayed for the amount of the judgment set forth, and costs.

The defendants in their answer set up as a defense to said petition, that the judgment named in plaintiff's petition was a judgment rendered by the Justice against defendant Rodgers, by default, and that said Rodgers as principal, and the other defendants as his sureties, with a view and for the purpose of taking an appeal from said judgment to the St. Louis Court, subsequently executed said recognizance or bond, but that prior to entering into said recognizance and the taking of said supposed appeal no application was made to the Justice to set aside said judgment by default, nor was the same refused by said Justice.

That after the taking of the supposed appeal, the transcript &c., of said cause was filed in the said Circuit Court, and that after the filing of said papers in said court, said Garnett, the plaintiff in the judgment, moved the said Circuit Court to dismiss said supposed appeal for the reason that no motion had ever been made before said Justice to set aside said judgment by default before said appeal was taken and said bond executed, and no such motion had ever been refused by said Justice; that upon a hearing of said motion so filed in said Circuit Court the said Circuit Court sustained the same and dismissed said supposed appeal.

The plaintiff demurred to this answer because it did not state facts constituting any defense to plaintiff's cause of action. The Circuit Court at special term sustained the demurrer, and defendants failing to further answer, judgment was rendered against them for the amount of the bond; execution being awarded for the amount of the judgment of the Justice, with costs, &c.

An appeal was then taken to the General Term of the St. Louis Circuit Court, where the judgment of the special...