Maryland Casualty Co. v. Lukcy Budge Mining Co.

• Decision Date: 10 December 1915
• Docket Number: No. 1451.,1451.
• Citation: 192 Mo. App. 337,180 S.W. 1011
• Parties: MARYLAND CASUALTY CO. v. LUCKY BUDGE MINING CO. et al.
• Court: Missouri Court of Appeals

180 S.W. 1011

192 Mo. App. 337

MARYLAND CASUALTY CO. v. LUCKY BUDGE MINING CO. et al.

No. 1451.

Springfield Court of Appeals, Missouri.

December 10, 1915.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Maryland Casualty Company against Lucky Budge Mining Company and 0. W. Stone. Judgment for plaintiff against the Mining Company, and judgment in favor of the defendant Stone, and plaintiff appeals. Reversed and remanded with direction to enter a judgment against the defendant Stone, and to issue execution with costs.

Frank L. Forlow, of Webb City, for appellant. A. L. Thomas, of Carthage, for respondent Stone.

FARRINGTON, J.

Appellant and respondent Stone agree that the following is a correct statement of the case presented:

On the 26th day of May, 1911, tie Maryland Casualty Company obtained a judgment in the circuit court of Jasper county, Mo., against the Lucky Budge Mining Company for $561.26 debt, and costs taxed at $21.50, for and on account of insurance having been furnished the defendant by plaintiff and not paid for. At that time the defendant was engaged in mining, having a lease and concentrating plant and being a going concern. That the defendant thereupon gave a bond in appeal, and duly appealed the cause to the Springfield Court of Appeals on the 2d day of June, 1911, where said cause remained until the 2d day of April, 1912, when said appeal was dismissed for failure of the appellant in that suit to prosecute its appeal. After this time, and while the appeal was pending in this court, the Lucky Budge Mining Company was adjudged a bankrupt, and its creditors only received dividends of 8.6 per cent. of their claims.

The plaintiff, after the return of the mandate of this court, brought this suit on the bond given by the Lucky Budge Mining Company on appeal, with John Durby and O. W. Stone as sureties. John Durby having departed this life, the suit was dismissed as to his administrator before the trial, and was continued only against the Lucky Budge Mining Company and O. W. Stone.

The cause was tried before the court without a jury, and at the close of all the evidence the court gave the plaintiff a judgment against the Lucky Budge Mining Company, the principal in the bond, but rendered judgment in favor of the other defendant, Stone. To this action the plaintiff duly excepted, and has brought this cause to this court, claiming that the court erred in not giving the plaintiff judgment against the defendant Stone, the surety on the bond.

The bond, omitting the caption and signatures, is as follows:

"We, Lucky Budge Mining Company, as principal, and John Durby and O. W. Stone, as securities, acknowledge ourselves indebted to Maryland Casualty Company in the sum of twelve hundred and no-100 dollars, to be void on this condition:

"Whereas, Lucky Budge Mining Company has appealed from the judgment of the circuit court of Jasper county, Missouri, rendered at the April term, 1911, of said court, in an action between Maryland Casualty Company, plaintiff, and Lucky Budge Mining Company, defendant.

"Now, if said appellant, Lucky Budge Mining Company shall prosecute their appeal to the appellate court with due diligence to a decision, and shall perform such judgment as shall be given by any appellate court, or such as any appellate court may direct the circuit court to give, and if the judgment of said circuit court, or any part thereof, be affirmed, that it 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 appellant by any appellate court.

"Witness our hands and seals this 31st day of May, 1911."

We have italicized that part of the condition of the bond, on which there is be placed a construction.

It will be observed that the condition of the bond is drawn in conformity with, and in the same language as, that prescribed in section 2042, R. S. 1909, providing for a stay of execution in certain cases when an appeal is taken. A construction, therefore, of the condition of the bond in this case is necessarily a construction of that part of the statute.

In the recognizance required under section 2068, R. S. 1909, where an execution is stayed under a writ of error, the statute makes the condition as follows:

"Conditioned that the plaintiff in error will prosecute such writ with effect, and pay the money that shall therein be adjudged against him by the Supreme Court or Courts of Appeals, or otherwise abide the judgment of such courts therein."

The provision, "will prosecute such writ with effect," has been construed to mean "will prosecute with success"; and that the dismissal by the plaintiff in error of a cause pending on writ of error will forfeit the bond and render the sureties on the bond liable. Campbell v. Harrington, 93 Mo. Am. 315. We have no hesitancy in holding that the condition of the appeal bond in tie present case has been breached, and that the surety on this bond was rendered liable by the principal allowing the appeal, which h?, had contracted in the bond would be prosecuted "with due diligence to a decision," to be dismissed for failure to prosecute. It would be a novel proposition to hold that a failure to prosecute an appeal is complying with an agreement to prosecute an appeal with due diligence to a decision? We therefore hold that to prosecute with due diligence to a decision means a successful decision, a decision that either affirms in whole or in part, or modifies, or reverses and remands, or reverses outright the judgment appealed from, which forms the basis of the appeal bond.

The conditions prescribed by the statute and in this bond following the one under consideration all clearly indicate that the decision to be had in the appellate court refers to one in which some relief is given the appellant from the judgment of the trial court.

In the case of Swofford Bros. Dry Goods Co. v. Livingston, 16 Colo. App. 257, 65 Pac. loc. cit. 415, we find the following excerpt, pertinent here, that being a suit against a...