State ex rel. Helm v. Duncan

• Decision Date: 06 March 1931
• Citation: 36 S.W.2d 679,225 Mo.App. 393
• Parties: STATE EX REL. N.W. HELM, RELATOR, v. J. E. DUNCAN, JUDGE OF CIRCUIT COURT OF PEMISCOT COUNTY, RESPONDENT
• Court: Missouri Court of Appeals

36 S.W.2d 679

225 Mo.App. 393

STATE EX REL. N.W. HELM, RELATOR, v. J. E. DUNCAN, JUDGE OF CIRCUIT COURT OF PEMISCOT COUNTY, RESPONDENT

Court of Appeals of Missouri, Springfield

March 6, 1931

Original Proceeding in Prohibition.

WRIT DENIED.

C. G Shepard and Von Mayes for relator.

McKay & Peal and Ward & Reeves for respondent.

COX, P J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

The relator, N.W. Helm, filed suit in the Circuit Court of Pemiscot County against Henry P. Talmadge, Jacob H. Van Deventer, a partnership, Steel Compress Company, a corporation, and C. C. Hanson. On the application of plaintiff, a receiver for certain property was appointed by the court and the property delivered to him. Defendants filed a motion to set aside the order appointing a receiver and for his discharge and a return of the property to defendants. This motion was overruled by the court and from the order overruling that motion, defendants appealed to this court and that case is now pending here. When the affidavit for appeal was filed and appeal granted, the court fixed the amount of the appeal bond at $ 10,000 and made an order allowing defendants ten days in vacation in which to file the same with the clerk of the court, the bond when filed to be approved by the clerk. Defendants executed an appeal bond and filed it with the clerk in vacation and it was approved by him. After this was done the defendants demanded possession of the property from the receiver who refused to deliver it to them. Defendants then applied to the judge of the circuit court of Pemiscot county in vacation for an order by him as judge of the court directing the receiver to deliver the property in his possession back to defendants pending the appeal from the order of the court refusing to discharge the receiver. The judge expressed an intention to make the order as requested by the defendants when relator asked the judge to withhold the order until he could apply to this court for a writ of prohibition to prohibit his making such an order. This, the judge kindly agreed to do. The relator then filed his petition in this court asking for a writ of prohibition against the judge. Issue and service of temporary writ has been waived, a return filed and the case submitted on the question of whether a permanent writ should issue.

The questions here involved are, first, whether the appeal bond executed by defendants and approved by the clerk of the court operated as a supersedeas and made it the duty of the receiver to return the property in his hands to the parties from whom he received it when he was appointed receiver.

Second whether the judge of the court had the power in vacation to make an order that would be binding on the receiver.

We may observe generally that no appeal lies in any case except as the same may be provided for by statute. [Segall v. Garlichs, 313 Mo. 406, 281 S.W. 693.] That being true, it necessarily follows that the terms upon which an appeal may be secured and what will be necessary to be done in order to stay execution pending the appeal must also be provided by statute. The provisions made by statute as to these matters are as follows: To secure an appeal the aggrieved party must file an affidavit as provided by section 1020, Revised Statutes 1929. In civil cases the docket fee of $ 10 must be paid to the clerk of the trial court, section 1021. If the proper affidavit is timely filed and the docket fee paid, the appeal goes as a matter of right. If a stay of execution pending the appeal is sought, a bond must be filed as provided in section 1022, Revised Statutes 1929, except in the cases therein excepted. In order to secure a stay of execution pending an appeal that section of the statute contains the following provisions as to the appeal bond: "When the appellant or some responsible person for him together with two sufficient sureties to be approved by the court shall, during the term at which the judgment appealed from is rendered, enter into a recognizance to the adverse party in a penalty double the amount of whatever debt, damages and costs or damages and costs have been recovered by such judgment, together with the interest that may accrue thereon and the costs and damages that may be recovered in any appellate court upon the appeal, conditioned that the appellee will prosecute his appeal with due diligence to a decision in the appellate court and shall perform such judgment as shall be given by such court or such as the appellate court may direct the circuit court to give and if the judgment of such court or any part thereof be affirmed that he will comply with and perform the same so far as it may be performed and will pay all damages and costs which may be awarded against the appellant by any appellate court: 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 the 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 the execution thereafter. . . ."

This statute is general in its application and seems to be intended to fully provide for all stays of execution in civil cases. Section 1018, Revised Statutes 1929, provides that an appeal may be taken from an order refusing to revoke the appointment of a receiver but says nothing about a stay of proceedings as to the receiver pending the appeal. To secure a stay, the appellant is remitted to the provisions of section 1022 above set out, unless it should be held that a court of equity, by reason of its inherent powers, might require conditions to be inserted in the appeal bond that are not provided by the statute, a question which we cannot decide in this proceeding. In this case the court, when the appeal was...