In re Switzer

• Citation: 98 S.W. 461,201 Mo. 66
• Parties: In re JOSEPHINE SWITZER, Guardian of HENRY W. SWITZER; HENRY W. SWITZER, Appellant, v. JOSEPHINE SWITZER, Guardian, FRANK ASKEW and JOACHIM A. BACHMAN
• Decision Date: 22 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 461

201 Mo. 66

In re JOSEPHINE SWITZER, Guardian of HENRY W. SWITZER; HENRY W. SWITZER, Appellant, v. JOSEPHINE SWITZER, Guardian, FRANK ASKEW and JOACHIM A. BACHMAN

Supreme Court of Missouri, Division Two

December 22, 1906

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Marley Swearingen & Utley for appellant.

(1) Sureties cannot appeal in their own name and capacity as such from order of final settlement. Zinc Co. v Hesselmeyer, 50 Mo. 180; Wilhite v. Ferry, 66 Mo.App. 460; Tuxbery's Appeal, 67 Me. 267; Woodbury v. Hammond, 54 Me. 332; Deering v. Adams, 34 Me. 44; Treadwell v. Burton, 8 Ala. 660; Richardson v. Chevalley, 26 La. Ann. 551; In re McDermott's Estate, 127 Cal. 450; Lumber Co. v Mimms, 49 La. Ann. 1294; Bank v. Barth, 74 Ill.App. 383; In re Scott's Account, 36 Vt. 302. It clearly appears from the statute concerning guardianship which requires a scire facias and judgment before an execution can issue against them, that the sureties are not a party to the judgment of final settlement and one not a party cannot appeal. Johnston v. Williams, 28 Ark. 478; Miller v. Bates, 56 Cal. 135; Beasley v Prentice, 13 Sm. & M. 97. (a) Appellants must be parties to the judgment. Meyer v. Hotel Co., 163 Mo. 66; Payne v. Niles, 20 How. 219; Aiken v. Smith, 54 F. 894; Ex parte Cutting, 94 U.S. 14; Elwell v. Fosdick, 134 U.S. 513; Guyon v. Ins. Co., 109 U.S. 173; Hesing v. Att'y-Gen., 104 U.S. 202; Rourke v. Goldstein, 86 Ill.App. 568; Sheldon v. Hinton, 9 Ill.App. 216; Heges v. Mace, 72 Ill. 472; Jager v. Dougherty, 61 Ind. 142; Coons v. Millett, 121 Ind. 585; Hodley v. Hill, 73 Ind. 142; Hammer v. Sexton, 69 Ind. 36; Scotland v. Co., 56 Cal. 625; McGinnis v. Wheeler, 36 Wis. 651; Hackley v. Hope, 4 Keys 123. (b) Sureties are regarded as strangers to the judgment. State ex rel. v. Kennedy, 163 Mo. 516; Meyer v. Hotel Co., 163 Mo. 66; Cement Co. v. Neumeister, 15 Mo.App. 592; McCormack v. Hubbel, 4 Mont. 87; Way v. Lewis, 115 Mass. 226; Cutler v. Evans, 115 Mass. 27; Krawl v. Libbey, 53 Wis. 292. (c) Sureties being strangers to the record cannot take an appeal merely because the judgment may affect their interest adversely. State ex rel. v. Talty, 139 Mo. 391; Guy v. Orcott, 169 Mo. 407; Hoover v. Railroad, 115 Mo. 81; McEntyre v. Sholty, 139 Ill. 178; Coleman v. Oil Co., 25 W.Va. 148. (d) The sureties are classed as to their covenants with such sureties as covenant that the principal shall do a particular act. State ex rel. v. Surety Co., 76 Mo.App. 240; State ex rel. v. Donegan, 12 Mo.App. 200; Irwin v. Backus, 25 Cal. 214; Nevitt v. Woodburn, 160 Ill. 203; Rice v. Wilson, 69 N.W. 336. (e) The sureties are estopped by the covenants of their bond from appealing. Woodbury v. Hammond, 54 Me. 332; Tuxbury's Appeal, 67 Me. 267; Schofield v. Churchill, 72 N.Y. 570; Krawl v. Libbey, 53 Wis. 293; McCormick v. Hubbell, 4 Mont. 87; Rice v. Wilson, 69 N.W. 336; 1 Lord Raymond 328; 3 Com. Dig., 637; Byrd & C. v. State to use, 44 Md. 504. (f) The sureties are not parties to the record and they are bound by judgments, not because they are parties to the record, but by the force of their agreements. Taylor v. Hunt, 34 Mo. 205; State v. Holt, 27 Mo. 340; State v. Denney, 36 Mo. 288; Dix v. Norris, 66 Mo. 514; Yoemans v. Hoshaw, 86 Mo. 199; Assn. v. Kleinhoffer, 40 Mo.App. 402. (g) The appellant must have some legal interest in the estate which will be enlarged or diminished by the appeal. Orthwein v. Brown, 66 Mo.App. 320; McFarland v. Pierce, 151 Ind. 548; Woodward v. Speer, 10 Vt. 420; Heminway v. Corey, 16 Vt. 225; Adams v. Woods, 8 Cal. 315; Deering v. Adams, 34 Me. 41. (h) A person is aggrieved so as to be entitled to an appeal only when the decree operates upon his property or bears upon his interest directly. Shields v. Ashley, 16 Mo. 471; Deering v. Adams, 34 Me. 44; Bank v. Young, 53 Me. 555; Woodbury v. Hammond, 54 Me. 332; Tuxbury's Appeal, 67 Me. 270; Black v. Kirgan, 15 N. J. L. 45; Downing v. Porter, 9 Mass. 366; Richardson v. Chevalley, 26 La. Ann. 551; Schwackhamer v. Kline, 25 N.J.Eq. 503; Deming's Appeal, 34 Conn. 201; Norton's Appeal, 46 Conn. 527; Wiggin v. Swett, 6 Met. 194; Ames v. Wood, 8 Cal. 315. (i) The test of the right of a third person to appeal is not that the judgment will operate as res adjudicata as to such third person. The true test is rather whether the third person asserts an interest in the res or subject-matter of the judgment. Zumwalt v. Zumwalt, 3 Mo. 269; Shields v. Ashley, 16 Mo. 472; Ins. Co. v. Houchins, 52 La. Ann. 1137; Hoffel v. Stonestreet, 6 Md. 303; Cecil v. Cecil, 19 Md. 72; State v. Markey, 21 La. 743. (j) Parties to the cause are persons interested or injured thereby. Zinc Co. v. Hesselmeyer, 50 Mo. 180; Edmond v. Scott, 78 Va. 720; Woodey v. Clark, 17 S.C. 313; Loury v. Loury, 64 N.C. 110. (k) An appeal will not lie in favor of one against whom no judgment has been rendered. McGreggor v. Pierson, 51 Wis. 122. (l) Sureties cannot defend. In re Scott's Account, 36 Vt. 302; Jones v. Doles, 3 La. Ann. 588; Lee v. Clark, 1 Hill 56; Poiler v. Volkenig, 11 Hun 385; Chamberlain v. Godfrey, 36 Vt. 380; Duffield v. Scott, 3 Tr. 374; Church v. Barker, 18 N.Y. 463; Leavitt v. Dodney, 40 How. 277; Hurd v. Lodge, 20 Pick. 53; Wyley v. Paulk, 6 Conn. 74; McLaughlin v. Bank, 7 How. 229; Train v. Gold, 5 Pick. 380. (2) The guardian filed her final settlement, admitting under oath that the amount for which judgment was rendered was actually due. She is bound by such admission. Bruce v. Sims, 34 Mo. 246; Knoop v. Kelsey, 102 Mo. 291; Lenox v. Harrison, 88 Mo. 491; Ramsey v. Henderson, 91 Mo. 560; Byrd & C. v. State to use, 44 Md. 504. (a) The judgment being rendered upon her own admission, she cannot complain. "Consensus tollet errorem." Webb v. Webb, 3 Swanst. 658; Darden v. Leries, 2 Fla. 572; Garner v. Prewett, 32 Ala. 19; Wheeler v. Pope, 5 Tex. 262. (b) A confession of judgment operates as a release of all errors. U.S. v. Babbett, 104 U.S. 767; Wilson v. Collins, 9 Ala. 127; Winter v. Rose, 32 Ala. 447; Lewis v. Breckenridge, 1 Blackf. (Ind.) 112; Merritt v. Clow, 2 Tex. 582; Garner v. Burleson, 26 Tex. 348; McDaniel v. Monday, 35 Tex. 39; McRae v. Turnpike, 3 Ran. 160. (c) The guardian admitted the amount due and the judgment is for such amount and is final. Garner v. Prewett, 32 Ala. 13; McBride v. Hunter, 64 Ga. 660; People v. Owners, 108 Ill. 442; Stewart v. Betzer, 20 La. Ann. 137; Cock v. Pope, 3 Munf. 167; Barnwell v. Harmon, 6 Mart. (O. S. La.) 388; Skinner v. Dameron, 5 Rob. (La.) 447; Railroad v. Brick Co., 15 Mo.App. 590. (d) No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court's. Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Finch v. Carpenter, 29 Hun 268; Peterson v. Swan, 119 N.Y. 662; Monell v. Lawrence, 12 Johns. 534; Atkinson v. Maups, 1 Cow. 709; Williams v. Neil, 4 Heisk. 279; Jones v. Williamson, 6 Coldw. 76; Ringold's Case, 1 Bland 9; Gable v. Williams, 59 Md. 51; Williams v. Williams, 7 Gill. 305; Geary v. Sheridan, 8 Ves. Jr. 192; Webb v. Webb, 3 Swanst. 658; Bradish v. Gee, Amble 229; King v. Wightman, 1 Anst. 80; Darden v. Leries, 2 Fla. 572; Owen v. Yates, 75 Mich. 256; McCafferty v. Celluloid Co., 43 C. C. A. 540; Brown v. Iron Co., 134 U.S. 530. (e) A party in whose favor and upon whose motion an order is made cannot appeal. Garner v. Prewett, 32 Ala. 19; Winter v. Rose, 32 Ala. 447; Wilson v. McAdams, 10 Iowa 590; Thompson v. Perkins, 57 Me. 292; Winchester v. Winchester, 121 Mass. 128; Campbell v. Randolph, 3 Pick. 313; Hudson v. Allison, 54 Ind. 215; Lallande v. Jones, 14 La. Ann. 714; Patten v. Sterritt, 20 Me. 145; Railroad v. Ketchum, 101 U.S. 295; Schmidt v. Mining Co., 28 Ore. 25; In re Radivich, 5 Am. St. 466; Hooper v. Bucher, 109 N.Y. 609; Mintz v. Brock, 193 Pa. St. 294; Bank v. Kilgore, 43 S.W. 565; Clallam Co. v. Clump, 15 Wash. 593; Marsden v. Soper, 11 Ohio St. 504; Woodman v. Valentine, 22 Me. 401; Wheeler v. Pope, 5 Tex. 262; Dunman v. Hartwell, 9 Tex. 495; Laird v. Thomas, 22 Tex. 276. (f) Same rule where judgment was rendered upon facts reported by consent of parties. Johnson v. Sped, 21 Pick. 225; 2 Ency. Pl. and Pr., 99-102. (g) No appeal lies from judgment of dismissal at appellant's request. Alleva v. Haggerty, 65 N.Y.S. 690; Smith v. Lowery, 56 S.C. 493. (h) But the trial court performs no judicial act when an order, decree or judgment is entered by consent. Chapin v. Perrin, 46 Mich. 130. (i) The purpose of an appeal is to bring up for review an erroneous action of the trial court. Chapin v. Perrin, 46 Mich. 130; Gridley v. Daggett, 6 How. Pr. 280. (j) The rights of the sureties are derivative, and they can only make the same defenses as the principal. Hughart v. Spratt, 78 Ky. 313; State ex rel. v. Judge, 22 La. Ann. 115; State ex rel. v. Weaver, 92 Mo. 673; Taylor v. Hunt, 34 Mo. 208. (k) The sureties are bound by the admissions of the principal made in due course of business. Blaif v. Ins. Co., 10 Mo. 567; Bank v. Kirbben, 48 Mo. 43; State ex rel. v. Weaver, 92 Mo. 680; St. Louis v. Foster, 24 Mo. 146; Dobbs v. Justice, 17 Ga. 624; U.S. v. Cutter, 2 Curt. C. C. 617; Reynes v. Facharies, 10 La. 127; Wilson v. Green, 25 Vt. 450. (3) The circuit court had no jurisdiction over the subject-matter of this appeal, for the reason that it is taken by the sureties in their name, character and capacity as such; no right is allowed by statute to sureties on guardians' bonds to appeal in such manner. The right to appeal must exist by statute before it can be exercised. (a) The right of appeal is purely statutory. State ex rel. v. Woodson, 128 Mo. 514; St. Louis v. Talty, 139 Mo. 380; In re Story, 120 Ill. 252; Bank v. Barth, 74 Ill.App. 383. (b) The statute...