Nations v. Brard

• Decision Date: 05 November 1924
• Docket Number: No. 18810.,18810.
• Citation: 267 S.W. 19
• Parties: NATIONS v. BRARD et al
• Court: Missouri Court of Appeals

267 S.W. 19

NATIONS v. BRARD et al

No. 18810.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Appeal from Circuit Court, St. Francois County; Hon. Peter Huck, Judge.

Action by J. C. Nations against Roy Beard and others. Judgment for plaintiff, and defendant L. B. Hise appeals. Affirmed.

Boyer & Threlkeld, of Farmington, for appellant.

W. A. Brookshire, of Farmington, for respondent.

BECKER, J.

Appellant appeals from a judgment rendered against him and others, as defendants below, in an action upon a forthcoming bond. It appears that the respondent, J. C. Nations, plaintiff below, brought suit against Roy Beard and C. Barnes before a justice of the peace in St. Francois township, St. Francois county, Mo., asking for judgment in the sum of $189.30, and had an attachment issued. Thereupon the defendants Beard and Barnes in that action, after their property had been attached in accordance with section 1772, R. S. of Mo. 1919, gave their forthcoming bond and moved the court to dissolve said attachment, which the court accordingly did.

At the time the attachment was dissolved and the defendants' property released, the case in question had been set `for hearing before the justice on the 17th day of December, 1921. However, the case was not tried upon that day, but upon application of the defendants therein was transferred to another justice within the same township, who tried the case without a jury and rendered judgment in favor of J. C. Nations, and against the said defendants Beard and Barnes in the sum of $189.30. In September, 1922, the judgment creditor, Nations, brought action against Beard and Barnes as principals, and Stewart, Hise, and Shaw as sureties, on the said forthcoming bond. A judgment resulted against all of the defendants in the sum of $189.30, from which judgment the defendant Hise alone brings this appeal. The bond in question is as follows:

"J. C. Nations, Plaintiff, v. Roy Beard and J. C. Barnes, Defendants.

"Attachment before J. L. Cleveland, Justice of the Peace. Bond to Dissolve Attachment.

"We, Roy Beard and C. Barnes, as principals, and J. C. Stewart, L. B. Hise, and Wm. Shaw, as securities, acknowlede ourselves bound to the above-named plaintiff, James C. Nations, in the sum of three hundred dollars ($300), upon this condition: That if the said Roy Beard and C. Barnes shall pay to the said J. C. Nations the amount which may be adjudged in favor of the said J. C. Nations, with interest and all cost of suit, on or before the 17th day of December, 1921, after judgment shall have been rendered, then this bond to be void; otherwise, it shall remain in full force.

"Witness our hands and seals this 6th day of December, 192—.

                      "[Seal.] C. Barnes
                      "[Seal.] J. C. Stewart
                      "[Seal.] Roy Beard
                      "[Seal.] L. B. Hise and Wm. Shaw
                

"Approved this 6th day of December, 1921. "J. L. Cleveland, Justice of the Peace."

It is clear from the record before us that the forthcoming bond in question was intended as a statutory bond, as provided for in section 1772, and not section 1748, R. S. of Mo. 1919. An examination of the bond itself at once discloses that It does not conform strictly to the requirements of said section 1772. the action of the plaintiff below therefore must be taken as based upon the written instrument in question; not as a statutory bond, but as a common-law obligation.

A bond intended for a statutory bond may be good as a common-law obligation, although insufficient under the statute, be cause of noncompliance with its requirements, provided it is entered into voluntarily, and on a valid consideration, and does not violate public policy or contravene any statute. 9 Corpus Juris, 27; State v. Cochrane, 264 Mo. 581, 175 S. W. 599; State v. C'Gorman, 75 Mo. 370.

The record before us discloses that the bond in question was given in an attempt to comply with our statute governing the dissolution of attachment cases. It was given for the sole purpose of permitting the defendant in the attachment suit below to retain the goods which had been attached. It was signed before the justice of the peace before whom the attachment suit was pending, was approved by him, and it was only in consideration of the said bond having been given that the court dissolved the attachment and released the property of the defendants. The record further discloses that the defendant L. B. Elise, below, and appellant, here, signed the bond voluntarily, and without any coercion or fraud practiced upon him by J. C. Nations, the obligee in the bond, so that it abundantly appears that the instrument in question must be held a voluntary bond, not opposed to public policy, and resting upon a sufficient consideration, thereby making it a binding and enforceable common-law bond. State to use of Hubbard, etc., v. Cochrane, 264 Mo. 581, 175 S. W. 599; State v. Simmons, 284 Mo. 664, loc. cit. 672, 225 S. W. 958; Smith ex rel. v. Rogers, 99 Mo. App. 252, 73 S. W. 243; Hughesville Mere. Co. v. McGruder, 132 Mo. App. 387, 111 S. W. 1179; State to use of Adams v. Finke, 63 Mo. App. 238; Hays v. Webster, 16 Mo. 258, 57 Am. Dec. 232; State ex rel. Owens v. Fraser, 165 Mo. 242, loc. cit. 258, 65 S. W. 569.

The point is sought to be made that the provision, "on or before the 17th day of December, 1921, after judgment shall have been rendered," is so indefinite as to make the bond invalid. We must rule this point against appellant.

In case of ambiguity or doubtful construction, the bond should be construed...