Schuster v. Weiss

• Decision Date: 14 February 1893
• Citation: 21 S.W. 438,114 Mo. 158
• Parties: SCHUSTER v. WEISS et al.
• Court: Missouri Supreme Court

21 S.W. 438

114 Mo. 158

SCHUSTER v. WEISS et al.

Supreme Court of Missouri.

February 14, 1893.

ST. LOUIS COURT OF APPEALS — TRANSFER OF CAUSES TO SUPREME COURT — CONSTITUTIONALITY — APPEAL BONDS — RELEASE OF SURETIES — APPROPRIATION OF OBLIGOR'S PROPERTY BY OBLIGEE.

1. The constitutional amendment adopted November 4, 1884, (Rev. St. pp. 87, 88, §§ 1-11.)

extending the territorial jurisdiction of the St. Louis court of appeals, and creating the Kansas City court of appeals, authorized the general assembly to increase or diminish the pecuniary limit of the jurisdiction of said courts; to provide for the transfer of cases from one court of appeals to another court of appeals; "to provide for the transfer of cases from a court of appeals to the supreme court;" and for the hearing and determination of such cases by the courts to which they may be transferred. Act March 4, 1885, provides that all cases which were pending in the St. Louis court of appeals on the 1st day of January, 1885, and not disposed of at the time said act "goes into effect," "and which, by the terms of the said constitutional amendment, would come within the final appellate jurisdiction of the supreme court, shall be certified and transferred to the supreme court, and be heard and determined by said court." Held, that said act, providing for the transfer of certain causes pending on appeal in the St. Louis court of appeals to the supreme court, being merely remedial, was constitutional, so far as it affected litigants only. In re Garesche, 85 Mo. 469, followed.

2. The conditions of an appeal bond executed in an ejectment suit pending on appeal from the circuit court of St. Louis to the St. Louis court of appeals when such act took effect were that "if said appellant shall prosecute his appeal, with due diligence, to a decision," in such court, "and shall perform such judgment as shall be given by" it, or by the supreme court, "in the event of an appeal thereto, or such judgment as the said St. Louis court of appeals, or said supreme court, in the event of an appeal, as aforesaid, may direct the circuit court of the city of St. Louis to give, and, if the judgment, or any part thereof, be affirmed," will comply therewith, and pay all damages and costs which may be awarded against him "by the St. Louis court of appeals," or said supreme court, "in case of an appeal as aforesaid," etc., then the obligation to be void. The case was transferred, in pursuance of such statute, from the St. Louis court of appeals to the supreme court, by which the judgment of the circuit court was affirmed, and the appellant failed to perform the judgment. Held, in an action against the sureties on the appeal bond, that the transfer of the case from the St. Louis court of appeals to the supreme court changed, varied, and enlarged the liability of such sureties, and they were thereby released. Black, C. J., and Brace, J., dissenting.

3. In such case there is no breach of the bond, since appellant was prevented by law from prosecuting his appeal in the St. Louis court of appeals, and no judgment was rendered by it, or by the supreme court, "on appeal" thereto from the former court, to be performed by him. Black, C. J., and Brace, J., dissenting.

4. It appeared that plaintiff was the appellee in the former action, and the divorced wife of the appellant therein, and that prior to bringing this action on the appeal bond the latter died. Held, that the sureties could not set up as a defense that, on the death of the obligor, plaintiff wrongfully appropriated sufficient of his property to satisfy the bond, since the probate courts furnish the proper remedy in such case. Black, C. J., and Brace, J., dissenting.

In banc. Appeal from St. Louis circuit court.

Action by Augusta Schuster against Joseph Weiss and others as sureties on an appeal bond executed by Joseph Schuster, now deceased, in an action wherein plaintiff was appellee, and said Joseph Schuster was appellant. From a judgment for plaintiff, defendants appeal. Reversed.

J. W. Collins, for appellant. Eber Peacock, for respondent.

GANTT, J.

This is an action on the following bond: "Know all men by these presents, that we, Joseph Schuster, as principal, and Henry Petersen, Christian Woltjen, Joseph Weiss, and Christian Jansen, as sureties, are held and firmly bound unto Augusta Schuster in the sum of five hundred dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated at St. Louis, this 31st day of May, 1884. The condition of the above obligation is such that, whereas the said Joseph Schuster has appealed from the judgment rendered against him, and in favor of said Augusta Schuster, in the circuit court, city of St. Louis, Missouri, for the sum of one cent damages, and for the possession of certain real estate, together with the costs: Now, if said appellant shall prosecute his appeal, with due diligence, to a decision in the St. Louis court of appeals, and shall perform such judgment as shall be given by the St. Louis court of appeals, or by the supreme court of the state of Missouri, in the event of an appeal thereto, or such judgment as the said St. Louis court of appeals, or said supreme court, in the event of an appeal, as aforesaid, may direct the circuit court of the city of St. Louis to give, and, if the judgment, or any part thereof, be affirmed, will comply with and perform the same, so far as it may be affirmed, and pay all damages and costs which may be awarded against him by the St. Louis court of appeals, or said supreme court, in case of an appeal as aforesaid, and shall pay all damages and accruing rents and profits, and shall stay waste pending said appeal, then this obligation shall be void; otherwise to remain in full force and effect. Joseph Schuster. [Seal.] Joseph Weiss. [Seal.] Christain P. Jansen. [Seal.] Henry Petersen. [Seal.] Christ. Woltjen. [Seal.] Approved in open court 31st day of May, 1884. Vogel, Clerk."

Augusta Schuster instituted an ejectment suit against Joseph Schuster to recover real estate in St. Louis. She recovered judgment in the circuit court, and Joseph took an appeal to the St. Louis court of appeals, and gave the above bond, to supersede the judgment of the circuit court. On the 4th of November, 1884, an amendment to the constitution of Missouri¹ was adopted by the people, whereby the territorial jurisdiction of the St. Louis court of appeals was extended, and the Kansas city court of appeals created. By this amendment the general assembly was authorized "to increase or diminish the pecuniary limit of the jurisdiction of said courts; to provide for the transfer of cases from one court of appeals to another court of appeals; to provide for the transfer of cases from a court of appeals to the supreme court; and to provide for the hearing and determination of such cases by the courts to which they may be transferred." On the 4th of March, 1885, an act of the general assembly was approved by which it was provided that "all cases which were pending in the St. Louis court of appeals on the 1st day of January, 1885, and which should not be disposed of at the time said act should go into effect, and which, by the terms of the said constitutional amendment, would come within the final appellate jurisdiction of the supreme court, should be certified and transferred to the supreme court, and be heard and determined by said court." The act contained an emergency clause, and took effect the day of its passage. In pursuance of this act, as the supreme court had appellate jurisdiction from the St. Louis court of appeals "in all cases involving title to real estate," this ejectment suit was by the St. Louis court of appeals transferred to this court, on the 16th day of June, 1885. The judgment of the circuit of St. Louis in said ejectment case was affirmed in the supreme court at the October term, 1887. Schuster v. Schuster, 93 Mo. 438, 6 S. W. Rep. 259. Joseph Schuster died in May, 1888, after the affirmance of the judgment in ejectment, and this action was brought against three of his sureties on the said appeal bond. The breaches assigned were that Joseph Schuster had not paid the costs adjudged against him in said suit in the circuit court, amounting to $39.65, nor the damages and rents accruing after said appeal down to the rendition of possession, amounting to $1,960, and for $400, permissive waste, in not repairing the houses. The defenses are that the transfer of said ejectment cause to the supreme court without a hearing or judgment in the St. Louis court of appeals, to which court only it had been appealed, was without the consent of the sureties on said bond, and varied, enlarged, and changed their liability as such sureties, and operated to discharge them from any and all liability thereon; that the conditions of said bond have not been broken; that the court of appeals has never rendered any judgment; that no appeal was ever taken from said court to this court, nor have they failed to perform any judgment of this court rendered on an appeal from the St. Louis court of appeals. And for another defense the sureties allege that plaintiff, who is the divorced wife of Joseph Schuster, upon his death took into her charge, and appropriated to her own use, a large amount of personal property, — more than enough to satisfy this bond, — without any right to do so; that there has been no administration on said estate; and asks to have her account for the same in exoneration of these sureties. The trial court excluded all evidence on this last defense, and at the close of plaintiff's case refused two instructions in the nature of a demurrer to the evidence, and a third, as follows: "(3) The court instructs the jury that it is admitted by the pleadings of the plaintiff and the defendants in this case that after the bond sued on in ...