Staley v. Howard

• Decision Date: 17 June 1879
• Citation: 7 Mo.App. 377
• Parties: J. C. STALEY, Respondent, v. R. J. HOWARD ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 377

J. C. STALEY, Respondent,

v.R. J. HOWARD ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1879.

1. In a proceeding to subject the separate estate of a married woman to the payment of notes executed by her, equity recognizes her obligation to pay, though execution is awarded against her property only.

2. In such a proceeding, the obligation of the sureties on an appeal bond is that the judgment shall be paid if affirmed, and if this is not done there is a breach of the bond.

3. The fact that, in case of default in payment, execution may issue against the specific property, does not alter the liability of the sureties.

4. On affirmance of the judgment appealed from, the plaintiff may proceed against the sureties without first enforcing the judgment as against the specific property described in the decree.

APPEAL from St. Louis Circuit Court.

Affirmed.

S. SIMMONS, for appellants: The instruction given by the court for plaintiff is erroneous, and illegally assumes that the judgment or decree of the Circuit Court is a personal judgment against a married woman, which it is not, and if it were it would be void.-- St. Louis v. Bernoudy, 43 Mo. 552; Higgins v. Pitzer, 49 Mo. 152; Fithian v. Monks, 43 Mo. 502. There was no breach of the bond.-- Jenkins v. Hay, 28 Md. 547. Woods v. Fulton, 2 Har. & G. 71. A bond is discharged when the performance is prevented by the obligee.-- Olive v. Alter, 14 Mo. 185.

KEHR & TITTMANN, for respondent: A feme covert, with respect to her separate property, is regarded in a court of equity as a feme sole.-- Coats v. Robinson, 10 Mo. 757. A feme sole may create debts in reference to her separate estate.-- Druhe v. De Lassus, 51 Mo. 165; De Baun v. Van Wagoner, 56 Mo. 349. But they do not become liens until so declared in a proper proceeding.-- Nash v. Norment, 5 Mo. App. 545. An appeal bond, conditioned only for “the due prosecution of appeal,” binds the sureties to pay debt, damages, and costs.-- Evans v. Hardwick, 1 J. J. Marsh. 436, 437; Farquhar v. Collins, 4 B. Mon. 448; Moore v. Gorin, 2 Litt. 186. The undertaking is forfeited and the liability of the sureties fixed as soon as the judgment of affirmance takes place and the debtor makes default in its payment. In an action on the bond, an allegation that the defendant in the judgment owns real estate, and that the execution was returned prematurely without attempting to make the money out of the real estate, is frivolous.-- Woods v. Derrickson, 1 Hilt. 410; Tissot v. Darling, 9 Cal. 278; Stillwell's Executor v. Bertrand, 22 Ark. 379; Saucer v. Walker, 5 Gill & J. 102; Teal v. Rice, 2 Green, 444; Stanley v. Lucas, Wright, 34; Wood v. Thomas, 5 Blackf. 553.

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

This is a suit against the defendants as sureties in an appeal bond the condition of which is as follows: “Now if said appellants shall prosecute their appeal with due diligence to a decision in the Supreme Court, and shall perform such judgment as shall be given by the Supreme Court, or such as the Supreme Court may direct the Circuit Court 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 affirmed, and pay all damages and costs which may be awarded against them by the Supreme Court, then this obligation to be void,” etc. The judgment from which the appeal was taken was rendered in a suit by the present plaintiff against Bridget M. Ivory, a married woman, and her trustee, and recites the execution of certain promissory notes, her equitable ownership of real estate described in the judgment, and continues: “It is therefore considered, etc., that the plaintiff recover the said sum of $1,222.65, so found as aforesaid, and that the real estate hereinbefore described be charged with the payment thereof, and that in default of the payment of said sum * * * the sheriff of St. Louis County proceed to sell said real estate,” etc.

Upon the execution of the bond the appeal was allowed, and in the Supreme Court it was adjudged “that the judgment * * * be in all things affirmed, and stand in full force and effect,” with costs. The plaintiff then caused execution to be issued against the real estate, and before the return-day directed the execution to be returned unsatisfied, which was done. The present suit was then brought, the breach alleged being that the defendants have not complied with or performed the judgment of the Circuit Court, and that the judgment remains unpaid. The defendants deny that there has been any breach of the bond, aver that Bridget M. Ivory and her trustee have tendered and now hold the real estate subject to the judgment and execution, and that the plaintiff refused to enforce his judgment. The court below decided against the defendants, and they have appealed.

It is contended that the present decision against the defendants assumes that the judgment appealed from was against the married woman, when in fact there was and could be no such judgment; that neither the married woman nor her trustee were liable, under the judgment appealed from, to pay the money either before or after its affirmance, and that the specific real property was alone liable to pay it; that the sureties in the appeal bond stand in no worse position than the married woman and her trustee, and therefore cannot be made to pay the money.

The general question here involved was considered not long since by this court, in the light of the decisions of this State and also of the recent English decisions. Hooton v. Ransom, 6 Mo. App. 19. The difference between the obligation of the married woman and the mere process...