Gray v. Dryden

• Decision Date: 31 October 1883
• Citation: 79 Mo. 106
• Parties: GRAY et al., Plaintiffs in Error, v. DRYDEN.
• Court: Missouri Supreme Court

79 Mo. 106

GRAY et al., Plaintiffs in Error,

v.DRYDEN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Montgomery Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

John M. Barker, Wm. H. Biggs and J. D. Barnett for plaintiffs in error.

Gatwood & Forrist for defendant in error.

MARTIN, C.

This was an action of forcible entry commenced before a justice of the peace on the 22nd day of March, 1880. The action was instituted in the name of Edward Gray and Mary Gray, his wife. It was tried by a jury and a verdict was rendered in favor of defendant. From this verdict and judgment the plaintiff Edward Gray alone appealed, giving an appeal bond reciting such fact. The entry of appeal was at his instance alone and in his behalf. When the appeal was perfected by filing of the papers of the case in the circuit court, the defendant moved for a dismissal of the appeal on the ground that the plaintiff in his complaint had alleged a joint possession in himself and co-plaintiff below, and by the judgment there the defendant had been acquitted of any injury to such possession. It was also urged that the court had no jurisdiction of the case, and that the affidavit and appeal bond were defective. This motion was sustained by the court, and the appeal was dismissed and judgment rendered against the plaintiff and his surety in the appeal bond for costs, and execution therefor awarded. From this judgment the plaintiff prosecutes his writ of error.

1. FORCIBLE ENTRY AND DETAINER: judgment upon appeal bond.

The court erred in rendering a judgment against the plaintiff's surety in the appeal bond. It has been determined in the decisions of this court that judgment cannot be rendered on appeal bonds in this form of action as it can be in other appeals from justices of the peace. Gunn v. Sinclair, 52 Mo. 327; Powell v. Camp, 60 Mo. 569.

2. APPEALS.

The statute of forcible entry and detainer provides that “any party aggrieved by the judgment of a justice of the peace, in any case of forcible entry and detainer, or unlawful detainer, except a judgment of non-suit, may appeal therefrom to the circuit court.” R. S. 1879, § 2468. This statute means what it says, and the fact that only one of two defendants, or one of two plaintiffs, has appealed cannot, of itself, be any good ground for dismissing the appeal. It has been held that when one of two defendants perfects an appeal for himself alone, the judgment below against his co-defendant remains in full force and is not affected by the appeal. Urton v. Sherlock, 61 Mo. 257. I see no reason why the same result should not follow an appeal when taken by only one of the two plaintiffs against whom a judgment has been rendered. The judgment against the non-appealing party is final, and constitutes a bar to any further suit by him. Whether the appealing plaintiff has a case which he can continue to prosecute alone in the upper court, is a question not easily disposed of on motion or otherwise than by trial. The facts constituting his cause of action must disclose its character. It must be evident that there are very few and perhaps no cases in which the plaintiff can legally proceed above if a co-plaintiff was a necessary party below; but if a party is unnecessarily joined as plaintiff below, and the necessary party or plaintiff seeks to appeal, I do not think the judgment remaining unappealed from by the unnecessary plaintiff, ought to be a bar against the other plaintiff who appeals...