Hyatte v. Wheeler

• Decision Date: 14 April 1903
• Parties: HYATTE v. WHEELER et al.
• Court: Missouri Court of Appeals

73 S.W. 1100

101 Mo. App. 357

HYATTE v. WHEELER et al.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

JUSTICES OF THE PEACE—APPEAL—BOND—NECESSITY.

1. Rev. St. 1899, § 3871, which empowers a justice of the peace, if he be satisfied that plaintiff is a poor person, and unable to pay the costs and expenses of suit, to permit plaintiff to prosecute the action without requiring security for costs, does not authorize the justice to permit the plaintiff to take an appeal to the circuit court without executing an appeal bond as required by section 4060.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by T. E. Hyatte against J. A. Wheeler and others. Judgment for plaintiff in the circuit court, after an appeal from a justice of the peace, and defendants appeal. Reversed.

Faris & Oliver, for appellants. Brewer & Collins, for respondent.

REYBURN, J.

This action was brought on an account before a justice of the peace, who rendered judgment for defendants, whereupon the plaintiff appealed to the circuit court of Pemiscot county. It is conceded by appellants that respondent filed proper affidavit for appeal from the judgment rendered by the magistrate, but by the latter respondent had been permitted to prosecute his suit in forma pauperis, and no bond for appeal to the circuit court was exacted. Appellant moved to dismiss in the circuit court for failure by plaintiff to execute and file an appeal bond before the justice, but the motion was overruled, and, a jury being waived, trial was had before the court, which rendered judgment for plaintiff. Appellants filed motions for new trial and in arrest of judgment, incorporating in both the ground that the appeal from the justice's court was improperly taken, and the motion to dismiss should have been sustained.

The sections of the Revised Statutes of 1899 governing appeals from judgments of justices of the peace to the circuit courts are as follows: Section 4060 recites, as one of the requisites to perfect such appeal, that appellant, or some person for him, together with at least one solvent surety, to be approved by the justice, must, within the period fixed, enter into a recognizance before the justice to the opposite party in an amount sufficient to secure the payment of the judgment and costs, conditioned for prosecution of the appeal with due diligence, and payment of the judgment that may be rendered against him in the appellate court, or, if appeal be dismissed, payment of the judgment rendered by the justice, with costs. Section 4061 specifically gives the form of such appeal bond. Section 4072 provides that no appeal shall be dismissed for want of a bond, or by reason of its insufficiency or defectiveness, if appellant, or some one on his behalf, before the determination of the motion to dismiss, will in the appellate court enter into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs incurred, by reason of such defect or omission. Provision is made for the prosecution of a suit as a poor person in justices' courts by section 3871, which empowers the justice, in his discretion, before or...