State ex rel. Heye v. St. Louis Court of Appeals

• Decision Date: 31 October 1885
• Parties: THE STATE ex rel. HEYE v. THE ST. LOUIS COURT OF APPEALS.
• Court: Missouri Supreme Court

87 Mo. 569

THE STATE ex rel. HEYE

v.THE ST. LOUIS COURT OF APPEALS.

Supreme Court of Missouri.

October Term, 1885.

Mandamus.

PEREMPTORY WRIT AWARDED.

A. R. Taylor and W. C. Jones for relatrix.

The constitution allows an appeal to the Supreme Court “in all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand and five hundred dollars.” Const., art. 6, sec. 12. The “amount in dispute,” means the amount of money that it would take to settle the dispute, which is $2199 99/100, the amount of the judgment recovered in the cause. Mosher v. Shear, 100 Ill. 469; Gray v. Blanchard, 7 Otto, 564; Tantsman v. Bank, 10 Otto, 6. The amount recovered being less than twenty-five hundred dollars, the court of appeals has jurisdiction of the cause.

Nathan Frank for respondent.

The amount in dispute exceeds twenty-five hundred dollars. Page v. Butler, 15 Mo. 73. In actions on bonds the judgment is always for the penalty. State v. Ruggles, 20 Mo. 99; State v. Sandusky, 46 Mo. 377; State v. Cooper, 79 Mo. 464. The damages laid in the petition constitute the test of the jurisdiction. Wilson v. Daniel, 4 Dal. 401; U. S. v. McDowell, 4 Cranch, 310; Hunt v. Hopkins, 66 Mo. 98; Gray v. Blanchard, 7 Otto, 564; Dashiell v. Slingerland, 60 Cal. 658.

NORTON, J.

This is a proceeding by mandamus to compel the St. Louis court of appeals to proceed to hear and determine a certain cause pending in said court, on the appeal of defendant in said cause from a judgment of the circuit court of the city of St. Louis. It appears from the record that the relatrix instituted a suit in said circuit court on a penal bond, in the sum of twenty-seven hundred dollars; that her damages were assessed at the sum of twenty-two hundred dollars, and that judgment was rendered for twenty-seven hundred dollars, the amount of the penalty, and also judgment awarding execution for twenty-two hundred dollars, the amount of damages recovered by relatrix for breach of the bond. From this judgment the defendant appealed to the St. Louis court of appeals, and upon the refusal of said court to proceed to hear the cause on the ground that it had no jurisdiction, the present proceeding was begun, and the only question presented for determination is, whether or not said court has final appellate jurisdiction of the cause. If the amount in dispute, exclusive of costs, exceeds twenty-five hundred dollars, then said court has no jurisdiction; and if such amount equals, or is less than twenty-five hundred dollars, then it has final appellate jurisdiction.

It is contended on behalf of respondent that, although the relatrix is only entitled to receive on the judgment appealed from, the sum of twenty-two hundred dollars, that nevertheless, inasmuch as the judgment was rendered for twenty-seven hundred dollars, the penalty of the bond, that said sum is the amount in dispute, and that, therefore, the St. Louis court of appeals has no jurisdiction to hear the cause on the appeal of defendant. In support of this view we have been cited to R. S., sec. 570; to the cases of State v. Ruggles, 20 Mo. 99; State v. Cooper, 79 Mo. 464; St. Louis, etc., v. Fox, 15 Mo. 73. While it is provided in said section 570, that in actions on penal bonds, if the plaintiff recover, the verdict assessing the damages shall be entered on the record, and judgment shall be rendered for the penalty of the bond, or for the penal sum forfeited, as in other actions, together with costs of suit, and with a further judgment that the plaintiff have execution for the damages so assessed, which damages shall be specified in the judgment; and while it has been held in the cases of State v. Ruggles, and State v. Cooper, supra, that in a suit on penal bonds, where a breach has been established and damages assessed, a judgment should be rendered for the penal sum mentioned in the bond; and while it has been held in the case of St. Louis v. Fox, supra, that in a suit on a penal bond, the jurisdiction is to be measured and determined by the amount of the penalty, it does not follow from all this that if in such a suit judgment is rendered for the penalty of the bond, as in this case, amounting to twenty-seven hundred dollars, and also a judgment awarding execution, as in this case, for twenty-two hundred dollars damages recovered by plaintiff for breach of the bond, that on defendant's appeal from such judgment that the amount in dispute is not the sum of twenty-two hundred dollars, which is all that plaintiff could collect under the judgment, but the sum of twenty-seven hundred dollars, no part of which in excess of twenty-two hundred dollars she could collect. But, on the contrary, we are of the opinion that on defendant's appeal, it is only the amount specified in the judgment of the court awarding execution, which is brought into dispute, the payment of which by defendant would end the dispute and nullify the judgment for the penalty...