Oberkoetter v. Luebbering

• Decision Date: 20 November 1877
• Citation: 4 Mo.App. 481
• Parties: FRANCIS OBERKOETTER ET AL., Appellants, v. JOHN F. LUEBBERING ET AL., Respondents.
• Court: Missouri Court of Appeals

4 Mo.App. 481

FRANCIS OBERKOETTER ET AL., Appellants,

v.JOHN F. LUEBBERING ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1877.

1. An order dissolving an injunction and dismissing the bill is a final decree from which an appeal may be taken.

2. It is no excuse or justification for failure to prosecute an appeal taken from such an order, that a motion for the assessment of damages upon the bond was subsequently made, and damages assessed by the trial court.

3. Where an appeal is perfected, the cause is pending in the appellate court, and no further order can be made in the cause by the trial court, unless it be an order vacating the appeal, made during the term.

APPEAL from St. Louis Circuit Court.

Affirmed.

WAGNER, DYER & EMMONS, for appellant.

H. N. HART and H. B. WILSON, for respondent.

BAKEWELL, J., delivered the opinion of the court.

The statute provides (Wag. Stat. 1070, sec. 49) that the appellant shall cause to be filed in the office of the appellate court “at least fifteen days before the term of such court to which the appeal is returnable, a perfect transcript of the record and proceedings in the case; if he fail so to do, and the appellee produce in court such transcript, and it appears thereby that an appeal has been allowed in the cause, the court shall affirm the judgment, unless good cause to the contrary be shown.”

In this cause the appellee produces in court the transcript, by which it appears that this was a bill in chancery, praying for an order restraining defendants from proceeding with a sale of real estate under execution. A temporary injunction was granted according to the prayer of the bill, on plaintiffs giving bond. On filing the answer, defendants moved to dissolve the injunction. On April 3, 1877, the cause was heard on the motion; and on the proof adduced, the court dissolved the injunction and dismissed the bill. A motion for a new trial was overruled; and on May 24, 1877, an appeal was allowed to this court. The appellees move that the judgment be affirmed, appellants having failed to prosecute the appeal.

Respondents show to this court that on May 28, 1877, defendants moved in the Circuit Court for an assessment of damages on the injunction bond; that an assessment of damages was had on July 14th, and damages assessed at $500; that a motion was made by plaintiffs to vacate this order, on the ground that plaintiffs had appealed to this court, and that this motion was overruled on October 30, 1877. Upon this, appellants say, as cause for not affirming the judgment of the court below, that the judgment of May 24th was not a final judgment, and that no final judgment was rendered in this cause until October 30th.

There can be no question whatever that the judgment of May 24, 1877, was a final judgment. It was an order dissolving the injunction, but dismissing the bill. It may well be that defendants should have waited for the determination of the appeal, before filing their motion for assessment of damages upon the bond, but no subsequent action of defendants could change the character of judgment given, or make the dismissal of the bill any thing but a final decree in the injunction suit. That decree was not less final because defendants, after an appeal had been perfected, moved for a summary proceeding upon the bond. In case the motion for assessment of damages had been made before the order was made granting the appeal, under the decision of the Supreme Court in Pacific Railroad Company v. Burger, 32 Mo. 578, no appeal could have been taken until that motion had been disposed of; but where there is an appeal allowed and perfected, and no order vacating the appeal is made during the term, and the judgment from which the appeal is taken is final in its nature, the appeal must be prosecuted if ...