Gary Realty Co. v. Swinney

Decision Date30 December 1924
Docket NumberNo. 23566.,23566.
Citation269 S.W. 961
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by the Gary Realty Company against E. F. Swinney. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank M. Lowe, of Kansas City, for appellant.

Cooper & Neel and John S. Wright, all of Kansas City, for respondent.

Harding, Murphy, Stinson & Tucker, Gossett, Ellis, Dietrich & Tyler, Haff, Meservey, German & Michaels, Miller, Camack, Winger & Reeder, James H. Goodrich, McCune, Caldwell & Downing, Bowersock & Fizzell, Harkless & Histed, Guthrie & Conrad, Herman M. Langworthy, Davis & Woodruff, Frank W. McAllister, Blackmar & Bundschu, Clyde Taylor, and Watson, Gage & Ess, all a Kansas City, amici curiæ.


This is a suit on an appeal bond. On November 1, 1915, the plaintiff instituted an action against E. P. Kelley, Paul Le Marquand, A. Le Marquand, W. Le Deux, F. G. Bonfils, Harry Tammen, and Empress Theatre Company, a corporation, under our forcible entry and unlawful detainer statutes, for the possession of certain premises situated in Kansas City. The action was brought before .one of the justices of the peace of Jackson county, but before the day of the trial the proceedings were removed to the circuit court by certiorari. Upon a trial of the cause in the circuit court plaintiff obtained judgment, the record entry of which is as follows:

"Now on this 18th day of March, 1916, come all the parties hereto, complainant (or plaintiff) appearing by its attorneys, Hadley, Cooper, Neel & Wright, and defendants appearing by their attorney, Frank M. Lowe, and plaintiff dismisses this action as to defendants F. G. Bonfils, Harry H. Tammen, and Empress Theatre Company, a corporation, and the court, having duly heard, seen, and considered the evidence (said cause having been tried before and submitted to the court sitting without a jury, at the January, 1916, term of this court on Wednesday the 8th day of March. 1916, the right of trial by jury being waived by all parties hereto, and complainant appearing in person and defendants by their said attorney, and when, at the conclusion of the evidence and arguments of counsel, the court took this cause under advisement) renders its decision herein and finds all the issues in favor of complainant and against defendants. And the court further finds that the defendants are guilty in manner and form as charged in the * * * complaint; that complainant is entitled to have restitution of the premises described in said complaint, to wit: (Here follows a description of the premises); that the complainant has sustained damages, by reason of the premises, to the amount of $2,000; and that the value of the monthly rents and profits of the said tenements is $650.

"Wherefore it is hereby ordered, considered, and adjudged that the complainant, Gary Realty Company, have restitution of the said premises found by the court to have been unlawfully detained, and recover of the defendants the sum of $4,000, being double the sum assessed and found by the court for complainant's damages, and that complainant also have and recover from defendants at the rate of $1,300, double the said sum found by the court, per month, for rents and profits, from this 18th day of March, 1916, until restitution of the said premises to plaintiff be made, together with the costs of this suit.

"Wherefore let execution issue."

In due course the defendants Kelly, A. Le Marquand, and Le Doux applied for, and were allowed, an appeal to this court. In connection therewith they tendered an appeal bond which was approved and filed in the cause, and which operated as a stay of execution pending the appeal. And that bond is the identical bond here in suit, according to plaintiff's contention. The bond declared on Is as follows (except its condition which will be set out hereafter):

"In the Circuit Court of Jackson County, Mo., at Kansas City, March Term, 1916. Gary Realty Company, a Corporation, Plaintiff, v. E. P. Kelley, A. Le Marquand, and W. Le Doux, Defendants, No. 95041.

"Appeal Bond to the Supreme Court of Missouri.

"Know all men by these presents that we, E. P. Kelley, A. Le Marquand, and W. Le Dour, as principals, and F. G. Bonfils and E. F. Swinney, as sureties, are held and firmly bound unto the Gary Realty Company, a corporation, in the sum of twenty-five thousand ($25,000.00) dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents, signed by us and dated this 27th day of March, 1916. * * *

                                      "E. P. Kelley
                                      "A. Le Marquand
                                      "W. Le Doux
                                      "E. F. Swinney."

"It was indorsed on back as follows: No. 95041. Bond for appeal to the Supreme Court $25,000.00. Filed March 28, 1916. James B. Shoemaker, Clerk, by J. F. Flynn, D. C."

Such proceedings were had in this court on the appeal that the judgment of the circuit court was affirmed. Realty Co. v. Kelly, 278 Mo. 450, 214 S. W. 92. Thereafter, defendants having failed to pay the sum adjudged against them as and for damages and rents and profits and for costs, aggregating $32,379.91, plaintiff instituted this suit on the bond above set forth for the penalty therein.

As it is insisted that the judgment, the execution of which was stayed by the appeal bond, was a nullity on the ground that both the justice of the peace court in which the proceeding was originated and the circuit court in which the judgment was rendered were without jurisdiction, a detailed statement of the proceedings had before the justice, and in connection with the removal to the circuit court by certiorari, is advisable.

On November 1, 1915, plaintiff commenced the suit against all the defendants first named by filing in the justice court a complaint which is not criticized either as to form or substance. The justice issued a summons, requiring the constable to summon all of the defendants to appear November 9, 1915; the summons being issued on the day suit was brought, to wit, November 1, 1915. On the next day, November 2, 1915, the constable returned the summons as personally served on the defendants Harry H. Tammen, Paul Le Marquand, and A. Le Marquand, but that he had made diligent search for and failed to find defendants E. P. Kelly, W. Le Dour, F. G. Bonfils, and Empress Theatre Company; and at 10 a. m. of November 4, 1915, plaintiff made application for an order of publication against them, and an order of publication was issued, and published for six clays in a designated paper, commanding them to appear on November 11, 1915.

On November 3, 1915, A. Le Marquand and Le Doux made application to remove the cause, by certiorari, from the justice to the circuit court, the application stating that the two defendants were "in the actual possession of the property." The affidavit accompanying the application was made by A. Le Marquand and stated, among other things, that he and Le Dour were in possession of the property. The bond filed with the application was made by said Le Marquand and Le Doux as principals, and was conditioned that they would pay all rents, profits, damages, and costs adjudged against them, and otherwise abide the judgment. This bond was signed by H. H. Tammen, presumably as surety.

The writ of certiorari was issued on the 3d day of November, 1915, directed to the justice to stop all further proceedings and certify the case "within 10 days after the service of this writ." It was served on the justice on November 4, 1915, but not until after the justice had issued the order of publication herein above referred to, and on the return day of the summons, to wit, November 9, 1915, the justice continued the case until November 11, 1915, "for completion of service by publication aforesaid."

On November 11, 1915, after filing proof of publication of the order of publication, the justice found that "service has been made as required by law upon all defendants, and that the court has jurisdiction of the said cause and of all parties thereto, including the defendants, E. P. Kelly, Paul Le Marquand, A. Le Marquand, W. Le Dour, F. G. Bonfils, Harry H. Tammen, and Empress Theatre Company, a corporation," and then the transcript was accordingly certified to the circuit court. In that court, Le Doux, Kelly, A. Le Marquand, F. G. Bonfils, and H. H. Tammen appeared, filed answer, and stipulated with plaintiff to waive a jury.

The petition in this case is conventional. The following abridgment of the answer will disclose the defenses pleaded: (1) Defendant, answering plaintiff's petition, admits that he signed the pretended bond sued on, but denies each and every other allegation in plaintiff's petition contained; (2) that plaintiff never obtained any judgment in the circuit court of Jackson county, Mo., on the 18th day of March, 1916, against E. P. Kelly, A. Le Marquand, W. Le Doux and Paul Le Marquand, in an action of unlawful detainer, being cause No. 95041, in said circuit court, and therefore plaintiff has no cause of action against this defendant upon any account thereof; (3) that when defend, ant signed the pretended bond, he signed it with the expressed understanding that said paper would not be delivered to the court and filed in said cause until and after it had been signed and executed by F. G. Bonfils, the other surety named in said paper, and that said paper was left with the principal, E. P. Kelly, who was to have said paper signed by the said F. G. Bonfils and, in case the said F. G. Bonfils did not sign said pretended bond, then it was not to be filed at all, that said pretended bond on its face gives notice that it is not complete, was never executed, and was not ready to be filed as a bond; (4) that the pretended bond sued...

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12 cases
  • Gary Realty Co. v. Swinney
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
  • Gary Realty Co. v. Swinney
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
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    • United States State Supreme Court of Missouri
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    ...... It is immaterial here that the bond did not strictly conform to the statutory terms. Gary Realty Co. v. Swinney, 306 Mo. 592, 269 S.W. 961, 965. It is further unnecessary here to determine ......
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    ...... by entering his appearance and consenting to a continuance. Gary v. Swinney, 306 Mo. 592, 617, 269 S.W. 961,. 967; Jackson v. Black, 286 S.W. 410, 411; State. ex ......
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