Schuster v. Weiss
| Decision Date | 14 February 1893 |
| Parties | Schuster v. Weiss et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Reversed.
J. W Collins for appellants.
(1) The bond sued on having been executed May 31, 1884, and the ejectment suit in which it was given having been without appellants' consent transferred by this court to the supreme court of Missouri, as required by legislative act of this state dated March 4, 1885, and which was not in existence and did not become a law for almost a year after the bond was signed, and could not have been contemplated by appellants at the time they entered into the obligation, was such a material variance of the terms and conditions of the bond, and such an enlargement of the risks assumed by appellants as sureties as to discharge them from all liability thereon. State to use v. Roberts, 68 Mo 234; Pybus v. Gibb, 6 Ellis & Black. 902; Bank v. Ridgley, 1 Harris & Gill, 324; People v. Tompkins, 74 Ill. 482; United States v. Kirkpatrick, 9 Wheat. 720; City of LaFayette v. James, 92 Ind. 240. (2) Appellants have a right to stand on the exact terms, stipulations and conditions of their bond. They are bound only in the manner, to the extent, and under the very circumstances pointed out and laid down in their obligation, in the carrying out and the performance of which every material act, condition and thing specified is to be done and performed as stipulated, and in the order and manner pointed out. Bank v. Traube, 6 Mo.App. 221; Yeatman v. O'Reilly, 12 Mo.App. 568; Singer Mfg. Co. v. Hibbs, 21 Mo.App. 574; Fisse v. Einstein, 5 Mo.App. 78; Simonson v. Grant, 36 Me. 439; Miller v. Stewart, 9 Wheat. 681; Tomlinson v. Simpson, 33 Minn. 443; M. & M. Co. v. Kimmel, 87 Ind. 560; Stull v. Hance, 62 Ill. 52; United States v. Boyd, 15 Peters, 187; Noyes v. Granger, 51 Iowa 227; City of LaFayette v. James, 92 Ind. 240; Ward v. Stahl, 81 N.Y. 406. (3) The transfer of the ejectment suit by an act of law to the supreme court will not answer the requirement of the bond or take the place of an appeal to that court. This court having rendered no decision or judgment in the ejectment suit, and no appeal of that suit having been taken to the supreme court, the terms and conditions of the bond were not complied with, and appellants are discharged. Nofsinger v. Hartnett, 12 Mo.App. 598; Nofsinger v. Hartnett, 84 Mo. 549; State to use v. Roberts, 68 Mo. 234; Pybus v. Gibb, 6 Ellis & Black. 902; Bank v. Ridgley, 1 Harris & Gill, 234; People v. Tompkins, 74 Ill. 482; United States v. Kirkpatrick, 9 Wheat. 720; City of LaFayette v. James, 92 Ind. 240.
Eber Peacock for respondent.
(1) If the enlargement of the liability of appellants on their bond rests upon the idea that the transfer caused delay and "had the effect of granting Joseph Schuster, the principal in the bond, additional time," the answer is that such delay and the effect thereof will not avoid the sureties' liability unless the time was extended by virtue of a contract made by the creditors with the principal and without the concurrence of the sureties. Adm'r v. Mannig, 55 Mo. 142; Obendorf v. Bank, 31 Md. 126; Reynolds v. Wait, 5 Wend. 501; Cornell v. Egan, 1 N.Y. 265. And such agreement must be upon a sufficient consideration. Ford v. Beard, 31 Mo. 159; Rucker v. Robinson, 38 Mo. 154; Wiley v. Hight, 39 Mo. 130; Bank v. Lewis, 8 Pick. 458; Bank v. Hill, 10 Pick. 153. (2) The appellants further contend, that the ejectment suit going to the supreme court by transfer instead of appeal had the effect of depriving them of a new bond to be given for the appeal, which would have been an additional security to them. The respondent answers that there is no provision in the bond sued on, or in the law, making any such condition. It is only in case a supersedeas is sought that a further appeal bond is required. 1 Revised Statutes, 1879, sec. 4713, p. 632; Babbitt v. Finn, 101 U.S. 7. (3) The act of the general assembly of March 4, 1885, providing for the transfer of cases respectively to the supreme court and the court of appeals according to the jurisdiction as fixed by the constitutional amendment adopted November 4, 1884, has been held to be constitutional. State ex rel. v. Sloan, 16 Mo.App. 541; In re Garesche, 85 Mo. 469. (4) The court below properly excluded testimony offered by defendants because in no sense whatever could the solvency or otherwise of a principal on the bond have enured to the benefit of the sureties in this form of action. (5) The instruction given by the court of its own motion was based on uncontroverted evidence and amounted to no more than a declaration of the legal effect of such evidence. Scovill v. Glasgow, 79 Mo. 449; Sharp v. Johnstin, 59 Mo. 557. (6) The condition in the bond sued on to stay waste and to pay accruing rents, dues, profits pending the appeal is general, and does not depend on a judgment of any particular court or any court. Robinson v. Plimpton, 25 N.Y. 484; Smith v. Crouse, 24 Barb. 433.
Barclay, J. did not take part in the decision.
OPINIONIn Banc.
This is an action on the following bond:
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 fourth of November, 1884, an amendment to the constitution of Missouri 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 fourth 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 first day of January, 1885, and which shall not have been disposed of at the time when this act shall go into effect, and which by the terms of the constitutional amendment * * * would come within the final appellate jurisdiction of the supreme court, shall be certified and transferred to the supreme court to 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 sixteenth day of June, 1885. The judgment of the circuit court 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. 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...
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