Kopitsky v. Schwenker

• Decision Date: 16 July 1935
• Docket Number: No. 23198.,23198.
• Parties: KOPITSKY v. SCHWENKER et al.
• Court: Missouri Court of Appeals

85 S.W.2d 180

KOPITSKY v. SCHWENKER et al.

No. 23198.

St. Louis Court of Appeals. Missouri.

July 16, 1935.

Rehearing Denied September 10, 1935.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be published in State Reports."

Suit by Abe Kopitsky against the Brock Motor Car Company in a justice court, wherein judgment was rendered for plaintiff and defendant appealed to the circuit court and gave an appeal bond with Henry F. Schwenker and another, as sureties. From a judgment of the circuit court entered by stipulation for plaintiff and against defendant and sureties, and an order refusing to set aside the judgment and to recall the execution against them as sureties, sureties appeal.

Affirmed.

Archa W. Weiss, of St. Louis, for appellants.

Montague Punch, of St. Louis, for respondent.

McCULLEN, Judge.

Respondent herein brought suit in a justice court of the city of St. Louis against the Brock Motor Car Company, a corporation, for the rent of premises occupied by that company in that city. On March 7, 1932, judgment was rendered in that cause in favor of respondent and against said Motor Car Company in the sum of $600. On March 9, 1932, the Motor Car Company duly appealed from said judgment to the circuit court of the city of St. Louis. On March 12, 1932, respondent's motion in the circuit court to require the Motor Car Company to furnish a new appeal bond was sustained, and on March 19, 1932, the Motor Car Company filed and the court approved a new appeal bond in the sum of $1,200, with appellants herein, Henry F. Schwenker and Hattie G. Schwenker, as sureties.

On May 10, 1933, on which date the cause was set for trial in the circuit court, the respondent herein, plaintiff in said cause, and the Brock Motor Car Company, defendant in said cause, appeared in open court by their respective attorneys and filed a stipulation therein consenting to a judgment in favor of plaintiff therein and against defendant therein and its sureties for the sum of $430.60. The stipulation also provided for a stay of execution for ninety days. Judgment was entered in the circuit court in favor of plaintiff and against defendant and its sureties in accordance with said stipulation on the day the stipulation was filed. The concluding part of the judgment provided that execution be stayed for ninety days from that date.

On August 15, 1933, the appellants herein filed a motion in the circuit court to set aside the judgment against them as sureties, but later withdrew this motion, and on August 30, 1933 filed a verified motion to set aside the judgment and to recall the execution thereon which had been issued on August 17, 1933. The motion of appellants to set aside the judgment and to recall the execution against them as sureties was overruled by the court, and they bring the cause to this court by appeal.

The verified motion of appellants (sureties) alleged that the circuit court was without jurisdiction to render the judgment against them and to issue execution thereon because the bond in question was not given in the justice court, but was given in the circuit court, and that plaintiff's only remedy was a suit on the bond in which the sureties would have their day in court; that the sureties did not learn of the stipulation and judgment filed in the circuit court until after the June term, 1933, of that court, and that they were filed therein without the knowledge or consent of the sureties; that there was not an affirmance of the judgment of the justice and there was not a trial of the cause in the circuit court.

The motion of appellants (sureties) further alleged that the stay of execution being without their appearance or approval released them from all liability under the bond; that they signed said bond as sureties on the express assurance of the president of the Motor Car Company that said corporation had a legal and meritorious defense to plaintiff's action against it, and that the same would be tried and submitted to the circuit court and that the stipulation and judgment were filed and entered in violation of said express assurance given by said president. It was further alleged in the verified motion that by reason of the stipulation, the judgment thereon and the stay of execution, the Motor Car Company was given an opportunity to dispose of its assets, and "as these sureties and movants are informed and believe, the said defendant has either wasted or disposed of said assets" so that the sureties were deprived of their legal recourse against said defendant in the event the sureties were forced to pay said judgment.

No evidence was offered or introduced by the appellants (sureties) in support of their motion. There are some suggestions, in the briefs of appellants, of fraud and collusion on the part of the respondent and the defendant Motor Car Company in connection with the procurement of the stipulation for judgment and stay of execution thereon, but since there are no such charges of fraud or collusion in the motion and no evidence whatsoever thereof, such suggestions cannot be considered here.

Appellants assign as error the circuit court's action in entering judgments against them as sureties on the stipulation between plaintiff and defendant, which they allege was filed without their consent. They also contend that the court erred in overruling their motions to set aside the judgment against them, and in overruling their motions to recall and quash the execution issued on said judgment.

The recognizance or bond in question was in the form prescribed by section 2342, R. S. Mo. 1929 (Mo. St. Ann. § 2342, p. 2448). It was signed by the Brock Motor Car Company, by its president, and by the appellants herein and was approved by the circuit court on March 19, 1932. It recited that the Brock Motor Car Company, a corporation, and Henry F. Schwenker and Hattie G. Schwenker (appellants herein) acknowledged themselves indebted to Abe Kopitsky in the sum of $1,200, "to be void upon this condition: Whereas, said Brock Motor Car Company, a corporation has appealed from the judgment of James H. Miller a Justice of the Peace of the Sixth District, of the City of St. Louis in an action between Abe Kopitsky, Plaintiff and Brock Motor Car Company, a corporation Defendant.

"Now, if on such appeal, the judgment of the Justice be affirmed, or, if, on the trial anew, in the Circuit Court, City of St. Louis, Mo., judgment be given against appellant, we shall satisfy such judgment, or if our appeal shall be dismissed, and we shall pay the judgment of the Justice, together with the costs of appeal, the recognizance shall be void."

Appellants argue that their obligation on the bond was conditioned upon the affirmance of the judgment of the justice, or upon a judgment being rendered against the Motor Car Company on a trial anew in the circuit court, and that a judgment by consent is not an affirmance of the judgment of the justice of the peace.

Appellants further contend that the rule to the effect that the obligations of sureties are strictly construed is applicable to appeal bonds, and that even if the judgment be not set aside, the motion to recall and quash the execution should not have been overruled because the granting of the stay of execution without their consent discharged them from liability on the bond.

There can be no doubt as to the right of an appellant to give and of the circuit court to accept a new bond on an appeal from a justice court.

Section 2353, R. S. Mo. 1929 (Mo. St. Ann. § 2353, p. 2455), provides that no appeal allowed by a justice shall be dismissed for want of an affidavit or recognizance or because the affidavit or recognizance given is defective or insufficient if the appellant, or some person for him, will, before a motion to dismiss is determined, "enter into such recognizance as he ought to have entered into before the allowance of the appeal. * * *" Under this section it has been held that on appeal from a judgment of a justice court, an appellant may file a new bond in the circuit court. Kraas v. Shipp, 69 Mo. App. 46; Bagley v. Kelly, 38 Mo. App. 623.

The bond in question herein was, therefore, a valid one and was given in accordance with the law.

We now proceed to determine whether or not appellants were released from liability on the bond by reason of the procedure in the circuit court complained of by them.

In Bailey v. Rosenthal, 56 Mo. 385, an action was commenced before a justice of the peace where there was a judgment for plaintiff. Defendant therein appealed to the circuit court. While the case was pending in the circuit court, plaintiff took a voluntary nonsuit, which later, by consent of the parties, was set aside without consulting the appeal bond sureties. Later the case was tried and a judgment was rendered in favor of the plaintiff and against the defendant and his sureties. The defendant and one of the sureties appealed to the general term which affirmed the judgment of the special term, whereupon they appealed to the Supreme Court, in which court they urged as ground for reversal that the court below had permitted the nonsuit to be set aside without the consent of the sureties. In that case the Supreme Court said: "It has never been held in this State, that sureties in an appeal bond are parties to the suit, in the sense that they must be consulted in regard to any step taken in the case before final judgment. * * * The recognizance, required by our statute on appeals from justices of the peace, is to secure to the appellee the payment of any judgment that may be rendered in his favor against the appellant. * * * It does not contemplate that the sureties in the recognizance shall prosecute or defend the suit, or in any manner interfere with the proceedings during the progress of the case." Bailey v. Rosenthal, supra. (Italics ours.)

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