Hill v. Keller
| Decision Date | 12 June 1911 |
| Citation | 139 S.W. 523,157 Mo.App. 710 |
| Parties | THOMAS HILL, Appellant, v. S. A. KELLER et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Barton Circuit Court.--Hon. B. G. Thurman, Judge.
Judgment affirmed.
H. W Currey, George V. Farris and W. J. Owen for appellant.
(1) The defendants, Keller and Fetters, having given an appeal bond with T. E. Stacey and Harrison Keller as sureties conditioned that they should prosecute their appeal with due diligence to a decision, and thereafter the appeal having been dismissed this was a breach of the bond and rendered the sureties liable. Campbell v. Harrington, 93 Mo.App. 315; Klein v. Boyd, 48 N.E. 475. (2) The appeal having been dismissed a right of action upon the bond accrued to plaintiff at the time of the dismissal and the suing out of a writ of error, which is a new suit and not a continuation of an appeal, and giving a supersedeas thereon, did not operate to release the sureties on the appeal bond. Swafford Bros. Co. v. Livingston, 65 P. 413; Chester v Broderick, 15 N.Y.S. 353; Babbitt v. Finn, 101 U.S. 37; Scheffel v. Scheffel, 84 S.W. 862; Bulkley v. Stephens, 29 Ohio 620; Taylor v Tibatts, 52 Ky. 177; Hayes v. Weaver, 55 N.E. 172, 61 Ohio 55; Smith v. Falconer, 11 Hun (N. Y.) 481.
M. R. Lively and Spencer, Grayston & Spencer for respondents.
(1) There is a principle that pervades the whole doctrine on the relation subsisting between the creditor and a security debtor; that is, that the obligation shall by no liberal intendment be carried in the smallest degree beyond the undertaking. And again, that there is no moral obligation on the security beyond, or superadded to the legal obligation. His obligation being essentially a legal one, it would follow that, if not liable in strict law, he is not liable at all. Bauer v. Cabanne, 105 Mo. 118; Dorriss v. Carter, 67 Mo. 544. (2) A bond was given to abide the judgment of the Supreme Court. Pending the appeal by a change of the law the case was sent to the Kansas City Court of Appeals, which affirmed the judgment. The principal became insolvent. It was held that no action could be maintained against the sureties to enforce the judgment of the Court of Appeals. Brookshier v. Melrath, 112 Mo.App. 687; Nofsinger v. Hartnett, 84 Mo. 549; Keaton v. Boughton, 83 Mo.App. 158; Brewing Co. v. Talbot, 125 Mo. 388; Moore v. Title Co., 131 S.W. 477. (3) Under the statute where one sues out a writ of error and bond is given and approved and proper endorsement made on the writ, as was done in this case, no execution shall issue and if issued the officer charged with the execution shall proceed no further therewith. R. S. 1909, secs. 2068, 2069, 2070. This means that all proceedings of every character under the judgment are stayed. State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Ranson, 86 Mo. 327; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Klein, 137 Mo. 673; State ex rel. v. Wood, 142 Mo. 127.
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. The facts are that during the April term, 1909, of the circuit court of Jasper county, on trial Summers recovered judgment in the 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 $ 3200, 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. [Sec 2042, R. S. 1909.] In the same chapter, we find the section (2068) as to the recognizance to be entered into when it is sought to stay execution upon writ of error, requiring such recognizance to be conditioned that the plaintiff in error will prosecute such writ with effect. It has been held under this latter statute that "with effect" means with success, and that nothing is to be considered to be success short of a reversal or an overturning of the judgment of which complaint is made. [Campbell v. Harrington, 93 Mo.App. 315, 324, 325.] The language of the appeal bond--prosecute the appeal with due diligence to a decision--carries with it no implication as to what that decision shall be, much less that the decision shall be one favorable to the appellant. The fact of the existence of a difference in the wording of the two sections has a significance not to be overlooked and such difference in wording is persuasive of the fact that the Legislature intended a difference in meaning. The distinction is recognized in Mattenlee v. Mattenlee (Mo. App.), 74 S.W. 889, where the appellate court had dismissed an appeal and respondent was urging that if the order dismissing the appeal should not be set aside, and the judgment be not affirmed, she would be deprived of the security afforded her by the appeal bond. The court said: ...
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