State ex rel. Allison v. Buford

• Decision Date: 20 November 1935
• Citation: 88 S.W.2d 349,337 Mo. 1198
• Parties: State of Missouri at the Relation of Alma Allison, Annie F. Flournoy, Executrix, Annie F. Flournoy, in Her Own Person, and John P. Flournoy, Relators, v. Lynn G. Buford, Clerk of the Circuit Court of Jackson County
• Court: Missouri Supreme Court

88 S.W.2d 349

337 Mo. 1198

State of Missouri at the Relation of Alma Allison, Annie F. Flournoy, Executrix, Annie F. Flournoy, in Her Own Person, and John P. Flournoy, Relators, v. Lynn G. Buford, Clerk of the Circuit Court of Jackson County

Supreme Court of Missouri

November 20, 1935

Alternative writ made peremptory.

John P. Flournoy, Barnett & Coolidge and Smart & Strother for relators.

(1) The order of the circuit court made on July 27, 1933, at its May 1933, term to the effect that the appellant, Martha A. Jones should have on or before ten days after the first day of the September Term, 1933, to file her appeal bond, is directly contrary to the express provisions of the statute authorizing the court to grant time in vacation for filing such bond, and is therefore void. Sec. 1022, R. S. 1929; Long v Dismer, 72 Mo. 655; Julian v. Rogers, 87 Mo. 229; State ex rel. v. Goldstein, 209 Mo.App. 102, 237 S.W. 814. (2) The circuit court at its September Term, 1933, had no authority or jurisdiction to permit the filing of the appeal bond or to approve it when filed, and its action attempting so to do is coram non judice and void. Sec. 1022, R. S. 1929; Long v. Dismer, 72 Mo. 655; Julian v. Rogers, 87 Mo. 229; State ex rel. v. Goldstein, 209 Mo.App. 102, 237 S.W. 814. (3) The record shows that on Saturday, September 9, 1933, the circuit court adjourned its May Term until court in course. The statutory limit of the time which, by a proper order made at its May Term, it could have granted for filing an appeal bond, expired on Tuesday, September 19, 1933. The bond in this case was not filed until Wednesday, September 20, 1933, which was one day too late even if a proper order had been made. Sec. 1022, R. S. 1929; Subdiv. 4, Sec. 655, R. S. 1929; Patchin v. Bonsack, 52 Mo. 431; Stutz v. Cameron, 254 Mo. 357; Spring v. Giefing, 315 Mo. 525, 289 S.W. 827; Lieberman v. Findley, 84 Mo.App. 387; American Surety Co. v. Steffen, 214 S.W. 806. (4) The bond, filed on September 20, 1933, after the statutory limit had expired, even though approved by the circuit court on that day, is a nullity, not binding on the sureties who signed it, and constitutes no protection for relators in securing the payment of their judgment. Adams v. Wilson, 10 Mo. 341; Garnett v. Rogers, 52 Mo. 145; Long v. Dismer, 72 Mo. 655; Brown v. Railway Co., 85 Mo. 123; Julian v. Rogers, 87 Mo. 229; Downing v. LaShot, 202 Mo.App. 509, 212 S.W. 30. (5) The bond, not having been filed within the statutory time, even though approved by the circuit court after that time, did not work a supersedeas and relators are entitled to an execution on the judgment. State ex rel. v. Goldstein, 209 Mo.App. 102, 237 S.W. 814; Shultz v. Jones, 223 Mo.App. 142, 9 S.W.2d 251; American Surety Co. v. Steffen, 214 S.W. 806. (6) The bond is not in the form required by the statute and is so conditioned as not to protect relators in realizing on their judgment in the event that this case should be transferred to the Kansas City Court of Appeals, as we think will probably happen. Sec. 1022, R. S. 1929; Keaton v. Boughton, 83 Mo.App. 158.

Goodwin Creason for respondent.

(1) The petition filed in the circuit court, being Exhibit I, to respondent's answer shows that the action involves title to real estate, and, therefore, this cause was properly appealed to this court. Koewing v. Greene County B. & L. Assn., 38 S.W.2d 40. (2) It has long been the rule of this court that, "as to matters to be transacted in court, Sunday is non dies, and should not be counted." Catell v. Dispatch Pub. Co., 88 Mo. 360; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1004; State v. Harris, 121 Mo. 447; Ewart v. Pennington, 233 Mo. 704; Long v. Hawkins, 178 Mo. 103; National Bank v. Williams, 46 Mo. 17; Maloney v. Ry. Co., 122 Mo. 115. It is conceded by all parties (and under the provisions of Sec. 2019, R. S. 1929) that the May, 1933, term of said circuit court ended on Saturday, September 9th, and that the September Term began on the next Monday, September 11, 1933. (3) Mandamus is not a writ of right, but is a discretionary writ and should be denied if, in the sound judicial discretion of the court, it appears inexpedient to issue same. State ex rel. v. Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. v. The Bank, 174 Mo.App. 589, 163 S.W. 945; State ex rel. v. Hudson, 226 Mo. 265, 126 S.W. 733. (4) Mandamus will not issue in cases of doubtful right. State ex rel. v. Hudson, 226 Mo. 265, 126 S.W. 733; State ex rel. Whitehead v. Wenom, 32 S.W.2d 59; State ex rel. v. Stone, 269 Mo. 342, 190 S.W. 601. (5) An order approving an appeal bond is a determination that the amount of the bond is sufficient, and, regardless of the amount, operates as a supersedeas. State ex rel. v. Dillon, 11 S.W. 255, 98 Mo. 90; Forsee v. Gates, 89 Mo.App. 577; State ex rel. v. Klein, 39 S.W. 272, 137 Mo. 673; State ex rel. v. Graves, 126 S.W. 328, 147 Mo.App. 324. (6) Even if the bond does not comply in all respects with the statute, but is approved, it operates as a supersedeas, and the remedy in such case is to file a motion in the appellate court for an order to require the appellant to file a new bond that will comply with the statute. American Brewing Co. v. Talbot, 125 Mo. 388; State ex rel. Whitehead v. Hudson, 226 Mo. 365, 126 S.W. 33; State ex rel. v. Goldstein, 200 Mo.App. 64, 205 S.W. 529. (7) The discretion of the trial court as to the qualification of sureties will not be disturbed where not arbitrarily exercised. State ex rel. v. Falkenhainer, 283 Mo. 209, 223 S.W. 100. (8) An order approving an appeal bond with only one surety operates as a supersedeas, though the statute requires two sureties. State ex rel. v. Goldstein, 200 Mo.App. 60, 205 S.W. 529. (9) A bond will not be held defective because it does not state in strict terms of the statute that appellant will perform the judgment of any appellate court, except that of the court to which the appeal is taken. Sanders v. Owens, 40 S.W.2d 738; Zellar v. Surety Co., 210 Mo. 108, 108 S.W. 548; American Brewing Co. v. Talbot, 125 Mo. 388; State ex rel. Mason v. Schmoll, 37 S.W.2d 972. (10) Where the term of court ends on a Saturday and the next term begins on the following Monday, there is no vacation of court, and, in court matters, such Monday is the next day after such Saturday. State ex rel. v. Graves, 147 Mo.App. 331. (11) Appeal bonds are to be construed as if the laws requiring and regulating them were written therein. Zellars v. National Co., 210 Mo. 92, 108 S.W. 548.

OPINION

Leedy, J.

Original proceeding in mandamus to compel the issuance of an execution upon a judgment. The case is here on respondent's return to our alternative writ, and relators' motion for judgment on the pleadings. There is no dispute as to the facts, and in briefest outline necessary to an understanding of the issues, they may be stated in this way: Relators were defendants in a certain cause pending in the Circuit Court of Jackson County, Missouri. On July 22, 1933, at and during the May, 1933, term, they recovered a judgment against the plaintiff in said cause, one Martha A. Jones. It was a judgment for costs in favor of all the relators herein, and for the amount of a certain note secured by deed of trust in favor of relator Alma Allison. It provided that if said note be not paid on or before September 30, 1933, then the deed of trust securing the same should be foreclosed, and the real estate described therein sold by the sheriff. The judgment debtor appealed. The appeal was allowed on the last day of the May Term, namely, Saturday, September 9, 1933, at which time the court fixed the amount of the appeal bond at the sum of Five Thousand Dollars ($ 5,000.00). A further order was entered giving appellant leave to file said bond "on or before ten days after the first day of the September Term, 1933." The September Term convened the following Monday, September 11, and thereafter, to-wit, on Wednesday, September 20, appellant filed her appeal bond, and the court approved the same. After September 30, relators made demand on respondent to issue execution on said judgment, which he refused to do.

Relators first assail the order giving leave to Martha A. Jones to file an appeal bond "ten days after the first day of the September Term, 1933," as being contrary to the express provisions of the statute, and, therefore, void. The statute insofar as applicable, reads as follows: "Upon the appeal being made, the court from which an appeal is prayed, shall make an order allowing the appeal, and such allowance thereof shall stay the execution in the following cases, and no others; First, (not applicable here); second, when the appellant, or some responsible person for him, together with two sufficient securities, to be approved by the court, shall, during the term at which the judgment appealed from was rendered, enter into a recognizance to the adverse party in a penalty, . . . conditioned: . . . Provided, however, that the court may, at the time of granting an appeal, by order of record, fix the amount of the appeal bond and allow appellant time in vacation, not exceeding ten days, to file same, subject to the approval of the clerk, and such appeal bond, approved by the clerk and filed within the time specified in such order, shall have the effect to stay execution thereafter, and if any execution shall have been taken prior to the filing of said bond, the same shall be released." (Italics ours.) We think it plain that the order, as entered, was not authorized because exceeding the time limitation fixed by the proviso contained in the statute. However, for the purposes of this case, we have concluded that the order may be treated as valid to the extent that it allowed "appellant time in vacation not exceeding...