Nichols v. Circuit Court of St. Louis Cnty.

• Decision Date: 30 November 1823
• Parties: NICHOLS v. CIRCUIT COURT OF ST. LOUIS COUNTY.
• Court: Missouri Supreme Court

1 Mo. 357

NICHOLS

v.CIRCUIT COURT OF ST. LOUIS COUNTY.

Supreme Court of Missouri.

November Term, 1823.

M'GIRK, C. J.

This case comes before the court, on an application for a rule to the Circuit Court of the county of St. Louis, to show cause why a mandamus should not issue, to compel that court to proceed and reinstate a cause, by that court dismissed. The case appears to have originated before a justice of the peace; and when it came to the Circuit Court by appeal, was dismissed, because the recognizance was not signed by the party appealing, as well as his surety. The words of the act of the General Assembly are, that the party appealing, if plaintiff, shall be bound, with surety, in a recognizance, &c. and if the defendant appeals, the form of the recognizance is to be the same; and then the act gives the form of the recognizance, and expressly says, it shall be subscribed by the party appealing and the surety, and tested by the justice: (see Geyer's Digest, 390). Here the words of the law are imperative, there is no room for construction.

It is said, this is like the case of Pratte, to the use of Winter & M'Call v. Ober,^(a) decided by this court. There, the motion was to dismiss, on appeal taken from the Circuit Court to this court. In that case, the recognizance was given, and the appeal taken, under the 54th section of the act respecting judicial proceeding (as sectioned in Geyer's Digest). The recognizance was entered into by sureties, and by some one appearing for the party appealing, whose right of agency did not appear. The motion was made to dismiss the appeal, because entered into by agent, and not by the party. The words of that law are, that it shall be the duty of the court to require of the party appealing, a recognizance, with one or more sureties, &c.: and the court decided, in that case, and under that law, that the party appealing need not necessarily be bound in the recognizance himself, to satisfy the words of the law.

It may be remarked that, by law, the party is to give the recognizance, and that he may do, though not bound by it himself; and that, when the recognizance is entered into by the sureties, he may well be said to give it. But here the law is different. The party shall subscribe it. That has not been done, and the appeal was rightly dismissed. The motion for the rule is overruled, at the cost of the mover thereof.^(b) In this case I am of opinion that the rule for a mandamus, if granted, would be premature, unless the...