State ex rel. Partridge v. Lewis

• Decision Date: 31 October 1879
• Citation: 71 Mo. 170
• Parties: THE STATE ex rel. PARTRIDGE v. LEWIS.
• Court: Missouri Supreme Court

71 Mo. 170

THE STATE ex rel. PARTRIDGE

v.LEWIS.

Supreme Court of Missouri.

October Term, 1879.

Original Mandamus.

PEREMPTORY WRIT AWARDED.

This was an application for a mandamus against Judges Lewis, Bakewell and Hayden, the judges of the St. Louis court of appeals, to compel them to entertain an application made to that court for the approval of an appeal bond, and, if the bond should be found sufficient, the granting of a supersedeas. The relator had already applied for, and the court had allowed, an appeal to the Supreme Court. When the application for the approval of the bond was made, they decided that an appeal having been granted, the court of appeals had no further jurisdiction of the case, and therefore could not entertain the application, although it was made within fifteen days after the rendition of the judgment and during the same term.

Jas. O. Broadhead and John P. Ellis for relator.

Geo. Denison and E. T. Allen for respondents.

SHERWOOD, C. J.

The statutory provisions regarding appeals to this court, so far as necessary to be quoted, are that: “No such appeal shall be allowed, unless: First, it be made during the term at which the judgment or decision appealed from was rendered; and second, the appellant or his agent shall, during the same term, file in the court his affidavit, stating, &c. and third, all appeals from the St. Louis court of appeals shall be taken within fifteen days after the day upon which judgment was rendered,” &c. R. S. 1879, § 3712. “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: * * 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,” &c. Ib., § 3713. It is thus clearly apparent from the above sections that the Legislature has seen fit to make a distinction between the St. Louis court of appeals and other inferior courts, requiring that appeals be taken ““during the term,” when taken from the judgments of the latter, but “within fifteen days” when taken from the judgments of the former. It is also equally apparent that our law-makers have made no distinction between those courts as to when the bond designed to operate as a supersedeas shall be filed, provision being...