Hill v. Keller

• Decision Date: 12 June 1911
• Citation: 139 S.W. 523,157 Mo. App. 710
• Parties: HILL v. KELLER et al.
• Court: Missouri Court of Appeals

139 S.W. 523

157 Mo. App. 710

HILL v. KELLER et al.

Springfield Court of Appeals. Missouri.

June 12, 1911.

Rehearing Denied August 2, 1911.

1. APPEAL AND ERROR (§ 1229) — LIABILITY ON BONDS — NATURE OF OBLIGATION.

Where an appeal bond given under Rev. St. § 2042, contained the statutory condition that the appellants would prosecute their appeal to a decision in the appellate court and perform such judgment as shall be given by the court, the condition, in view of section 2068, referring to the recognizance to be entered into upon writs of error, and providing that the plaintiff in error will prosecute such writ with effect, carries with it no implication as to what the decision shall be or that it shall be favorable to the appellant.

2. APPEAL AND ERROR (§ 1231) — LIABILITIES ON BONDS — "DECISION."

Where an appeal bond given under Rev. St. § 2042, contained the statutory condition that the appellant would prosecute the appeal to a decision, a dismissal of the appeal is a "decision" within the purview of the bond.

3. APPEAL AND ERROR (§ 1229) — LIABILITY ON BONDS — NATURE OF OBLIGATION.

The obligation of a surety upon a statutory appeal bond must be strictly construed, as well as the statute providing for the bond.

4. APPEAL AND ERROR (§ 1231) — LIABILITIES ON BONDS — AFFIRMANCE — DISMISSAL.

An appeal bond given under Rev. St. 1909, § 2042, contained the statutory condition that the appeal should be prosecuted to a decision and that the appellant should perform the judgment of the appellate court. Held that, in view of Rev. St. 1899, §§ 812, 813, referring to appeals and dismissals, and in view of the fact that a writ of error may in certain cases be sued out after an appeal has been dismissed, the dismissal of an appeal for failure to comply with the rules of court is not an affirmance of the judgment so as to render the sureties on the appeal bond liable.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Thomas Hill against S. A. Keller and others. Judgment for defendants, and plaintiff appeals. Affirmed.

H. W. Currey, George V. Farris, and W. J. Owen, for appellant. M. R. Lively and Spencer, Grayston & Spencer, for respondents.

NIXON, P. J.

This was an action on an appeal bond, given in a case pending in Jasper county, on appeal thereof to the Kansas City Court of Appeals. The original case, in which the bond was given, finally reached and was decided by this court and certified to the Supreme Court. 133 S. W. 1180. The facts are that during the April term, 1908, of the circuit court of Jasper county, on trial Summers recovered judgment in that court against S. A. Keller and James Fetters (two of the defendants herein). An appeal was allowed these defendants to the Kansas City Court of Appeals, and in due time they filed and had approved their appeal bond in the sum of $5,200, with F. E. Stacy and Harrison Keller (the other two defendants herein) as sureties. The bond was conditioned that: "If S. A. Keller and James Fetters shall prosecute their appeal to the appellate court with due diligence to a decision, and shall perform such judgment as shall be given by the appellate court, or such as the appellate court may direct the circuit court to give, and if the judgment of said circuit court, or any part thereof, be affirmed, that ____ will comply with and perform the same as far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellants by the appellate court. * * * " At the October term, 1908, of the Kansas City Court of Appeals, the said appeal was dismissed for failure to comply with the rules, and it was ordered that the respondent therein recover against the appellants the costs and charges therein expended and have execution. All the costs and charges connected with the appeal, both in the circuit court and the Court of Appeals, were paid by said appellants long before the commencement of the present suit. In May, 1909, within one year after the rendition of said judgment in the circuit court, the defendants sued out a writ of error from the Kansas City Court of Appeals, in said cause, and filed and had approved their bond, which was conditioned "that the plaintiffs in error should prosecute their writ of error with effect in the appellate court, and perform such judgment as shall be given by the appellate court, or it may direct the circuit court to give, and if the judgment of the circuit court, or any part thereof, be affirmed, they should comply with and perform same so far as affirmed, and pay all damages and costs that might be awarded and adjudged against said plaintiffs in error." The recognizance having been approved, it was ordered that a supersedeas be granted and that execution be stayed until the error complained of could be heard and determined. Accordingly, the case went to the Kansas City Court of Appeals for trial on said writ of error, and was then transferred to and heard by this court, as above stated, and is still pending and undetermined having been certified by this court to the Supreme Court as we have stated. On the 17th day of May, 1909, plaintiff, Thomas Hill (the judgment having been assigned to him), commenced this action in the circuit court of Jasper county against the four respondents herein to recover the amount of the appeal bond and to have execution thereon for the amount of the judgment. After both judges of the circuit court of Jasper county had been disqualified, the case was sent to the circuit court of Barton county, where, after hearing the evidence, the court found the issues in favor of the defendants. The plaintiff has appealed.

The petition is in the usual form. The breach of the conditions of the appeal bond specifically charged is "that S. A. Keller and James Fetters did not prosecute their appeal with due diligence to a decision in the appellate court, but that their appeal was dismissed by the Kansas City Court of Appeals, and that the judgment and mandate of the Kansas City Court of Appeals was duly filed in the office of the clerk of the circuit court of Jasper county on the ____ day of December, 1908, and that the said S. A. Keller and James Fetters have failed to pay the said judgment, or any part thereof, and that all of the said judgment and the costs in said cause remain wholly unpaid and unsatisfied." Defendants' amended answer, besides setting up the facts concerning the issuance of the writ of error and supersedeas, denies that any breach of the conditions of the appeal bond has occurred. The appellant at the trial made no claim and offered no evidence of any damages, general or special, by reason of the failure of Keller and Fetters to prosecute their appeal with due diligence or otherwise except their failure to pay the judgment appealed from.

It will be readily observed that if no breach of the conditions of the appeal bond has occurred, or that none remain unsatisfied, the judgment of the Barton county circuit court was for the right party and should be affirmed.

The appeal bond under consideration was in literal compliance with the statute and contained the statutory condition that the appellants would prosecute their appeal with due diligence to a decision in the appellate court and perform such judgment as shall be given by such court. Section 2042, Rev. St. 1909. In the same chapter, we find the section (2068) as to the recognizance to...