Sanders v. Owens

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 738,225 Mo.App. 442
• Parties: A. G. SANDERS, RESPONDENT, v. D. L. OWENS AND T. M. STOFFLE, APPELLANTS
• Court: Missouri Court of Appeals

40 S.W.2d 738

225 Mo.App. 442

A. G. SANDERS, RESPONDENT, v. D. L. OWENS AND T. M. STOFFLE, APPELLANTS

Court of Appeals of Missouri, Springfield

July 3, 1931

Appeal from Circuit Court of Pemiscot County.--Hon. John E. Duncan Judge.

MOTION TO REQUIRE APPELLANTS TO GIVE ADDITIONAL BOND OVERRULED.

Ward & Reeves for appellant Stoffle.

Von Mayes and N.C. Hawkins for respondent.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This cause was appealed from the circuit court of Pemiscot county and is returnable to the next, October, term, of this court at which term the case will be for consideration on its merits, but the plaintiff has filed the following motion in this court.

"Now comes the respondent in the above-entitled cause and moves the court to vacate and set aside the action of the clerk of the circuit court of Pemiscot county, Missouri, approving in vacation the appeal bonds given and filed by appellants in said cause and require appellants to give a good and sufficient appeal bond in said cause, for the following reasons:

"1st. Because said appeal bonds require appellants to perform such judgment as may be given by the Springfield Court of Appeals or such judgment as the Springfield Court of Appeals may direct the circuit court of Pemiscot county, Missouri, to give, and contain no condition requiring appellants to perform any judgment of any other appellate court, and therefore said bonds are insufficient and fail to comply with the provisions of section 1022, Revised Statutes 1929.

"2d. Because the appeal bond given and filed by the appellant, D. L. Owens, is signed by only one security and therefore said bond is insufficient and fails to comply with the provisions of section 1022, Revised Statutes 1929.

"3rd. Because the appeal of appellants was jointly taken and therefore a joint appeal bond by appellants should be made and filed in lieu of separate bonds.

"In support of this motion respondent files herewith and annexes hereto true copies of the motion for new trial, affidavit for appeal and appeal bonds filed in said cause, duly certified to by the clerk of the trial court.

The record before us shows that the plaintiff in the suit in the circuit court filed a petition seeking a judgment against these two defendants and other directors of the Bank of Wardell to require them to pay the amount of money the plaintiff had on deposit in said bank at the time it failed, on the theory that the bank, at the time the deposits were made by plaintiff, was insolvent and the officers and directors knew it was insolvent. Judgment was had against D. L. Owens who was the cashier of the bank and T. M. Stoffle, President, but in favor of the other defendants who were directors.

The record shows that Owens was represented in the trial of the cause in the circuit court by one firm of lawyers and that Stoffle was represented by another firm of lawyers, Ward & Reeves, and that Stoffle, through his attorneys, is contesting this motion.

When judgment was had in the circuit court a joint motion for new trial was filed signed by attorneys for both of these defendants. Upon its being overruled one affidavit for appeal was filed and upon that affidavit an appeal was granted to both of these defendants to this court. The amount of the appeal bond was fixed at $ 2,000. Each of the defendants gave separate bonds. The bond of D. L. Owens for $ 2,000 was signed by M. C. Owens as surety. The bond of T. M. Stoffle was signed by J. H. Walker and J. T. Swift as sureties. No complaint is made as to the solvency of these bonds. The complaint as shown by the above motion, is, First, that the bonds contain no condition requiring appellants to perform any judgment of any other appellate court, and is therefore insufficient to comply with the provisions of section 1022, Revised Statutes 1929. Second, because the appeal bond given by D. L. Owens is signed by only one surety, and does not comply with the provisions of said section 1022 and, Third, because the appeal of the appellants was jointly taken, a joint appeal bond should be made and filed in lieu of separate bonds.

Each of the two bonds filed and approved by the clerk of the circuit court after stating that an appeal had been granted to the Springfield Court of Appeals, contains the following language: "Now therefore, if the said (the name T. M. Stoffle appears in the bond executed by him, and the name D. L. Owens appears in the bond executed by Owens) shall prosecute his appeal with due diligence to a decision in said Springfield Court of Appeals, and shall perform such judgment as shall be given by the said Springfield Court of Appeals in the premises, and such a judgment as the said Springfield Court of Appeals shall direct the circuit court aforesaid, to give; and in case the judgment first aforesaid of the last named court or any part thereof shall by said Springfield Court of Appeals be affirmed; if then the said appellant shall comply with and perform the same so far as it may be affirmed, and shall pay all damages and costs which may be awarded against said appellant by said Springfield Court of Appeals, then this obligation shall be null and void; otherwise it shall remain in full force and effect"

Section 1018, Revised Statutes 1929, provides that any party may appeal from any judgment of any circuit court to a court having appellate jurisdiction. [Thomas v. Elliott, 215 Mo. 598, 114 S.W. 987.] The Springfield Court of Appeals has appellate jurisdiction of cases like this tried in the circuit court of Pemiscot county, and the appeal was properly granted to this court by an order of the trial court. The trial court performed its duty in designating this court as the one to which the case should be appealed. [Forsee v. Gates, 89 Mo.App. 577.] The bonds were given to stay execution while the appeal was pending, in keeping with sections 1022 and 1024, Revised Statutes 1929. There is no possibility that we can think of wherein this cause could by any chance be transferred to either of the other two courts of appeals within this State. There is a possibility that this cause might...