State ex rel. Gawtry v. Adams

• Decision Date: 25 January 1881
• Citation: 9 Mo.App. 464
• Parties: STATE OF MISSOURI, EX REL. ANNE E. GAWTRY ET AL., v. ELMER B. ADAMS, Judge.
• Court: Missouri Court of Appeals

9 Mo.App. 464

STATE OF MISSOURI, EX REL. ANNE E. GAWTRY ET AL.,

v.ELMER B. ADAMS, Judge.

St. Louis Court of Appeals, Missouri.

Jan. 25, 1881.

1. In an application for mandamus to compel a trial judge to approve, and permit the filing of, an appeal-bond, the question of the sufficiency of the bond to operate as a supersedeas cannot be determined.

2. Mandamus will lie to compel the trial court to allow to be filed an appealbond where the sureties are sufficient, irrespective of the amount of the penalty named therein.

APPLICATION for mandamus.

Peremptory writ awarded.

J. M. & C. H. KRUM, for the relators.

BALDWIN, HAMILTON, and N. HOLMES, for the respondent.

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

A bill in equity was filed in the St. Louis Circuit Court, the general object of which was to subject certain real estate, the separate property of Anne E. Gawtry, a married woman, to the payment of a personal contract alleged to have been made by her. The cause coming on to be heard, a decree was made charging the real estate of the defendant, Anne E. Gawtry, with the sum of $12,546.71, being the amount, with interest, of the note alleged to have been executed by her, and ordering that the said real estate be sold to satisfy the note. Mrs. Gawtry, after taking the usual steps, presented her affidavit for an appeal, and tendered a bond with sufficient sureties, in the penal sum of $1,000. The court refused to approve this bond, and refused to allow it to be filed, solely on the ground that the penalty of the bond is not double the amount of the debt found in the decree to be due the plaintiff. Thereupon Anne E. Gawtry petitions this court to award her a writ of mandamus commanding the judge of the Circuit Court to accept the bond offered, and order it to be filed. The judge of the Circuit Court waives the issuing of an alternative writ, and admits in writing that the petition for a mandamus (the substance of which is set out above) contains a true and correct statement of the facts.

“No bail in error was required at common law; so that the defendant, by bringing a writ of error, might have delayed the plaintiff of his execution without giving any security, either for the prosecution of such writ, or for the payment of the debt or damages recovered by the former judgment in case it should be affirmed, or the writ of error should be discontinued, or the plaintiff in error non-suited therein.” 2 Tidd's Pr. 1147. This inconvenience has been remedied in...