Kehler v. Walls

• Decision Date: 02 April 1906
• Citation: 118 Mo. App. 384,94 S.W. 760
• Parties: KEHLER et al. v. WALLS.
• Court: Missouri Court of Appeals

94 S.W. 760

118 Mo. App. 384

KEHLER et al. v. WALLS.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

On Rehearing, May 7, 1906.

1. APPEAL AND ERROR—WRIT OF ERROR—ISSUANCE PENDING APPEAL.

A writ of error sued out pending an appeal will be quashed, although, after the granting of the appeal, appellant failed to comply with the law and rules of court in prosecuting his appeal.

2. SAME — DISMISSAL — FAILURE TO TAKE PROPER STEPS.

Where an appellant fails to comply with the law and rules of court in prosecuting his appeal, it will be dismissed.

Appeal from and Error to Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by W. L. Kehler and another against T. A. Walls. Judgment in favor of plaintiffs, and defendant appeals therefrom and brings error. Writ of error quashed, and appeal dismissed.

Boyd Dudley, Wm. E. Smith, and Edward C. Wright, for appellant and plaintiff in error. Rollin J. Britton and Nat G. Cruzen, for respondents and defendants in error.

BROADDUS, P. J.

On the 24th day of December, 1904, the cause was tried and judgment rendered for plaintiffs in the sum of $154. On the same day, defendant filed his affidavit for an appeal, and thereupon he was granted an appeal to the Kansas City Court of Appeals. The appeal bond was fixed at $400, to be filed within 10 days from the adjournment of the court, to be approved by the clerk in vacation. On the 7th day of October, 1905, he sued out his writ of error in the cause, which was made returnable to March term of this court for the year 1906. On the 2d day of March, 1906, the respondents filed a motion for affirmance, on the ground that defendant had not complied with the statute in prosecuting his appeal. And, on the same day also, respondents filed their motion to quash the writ of error.

The defendant claims that there is no appeal pending in this court—therefore there can be no affirmance of the judgment, and the writ of error is properly pending. The law is otherwise. In Burdett v. Dale. 95 Mo. App. 511, 69 S. W. 480, where an appeal had been allowed and supersedeas bond given, the court held that it had the effect to transfer the jurisdiction of the cause (as distinguished from jurisdiction over the record thereof) to the appellate court. In Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303, it is held that: "An appeal to the Supreme Court from a judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the...