State Ex rel. Tuemler v. Goldstein

• Decision Date: 07 February 1922
• Citation: 237 S.W. 814,209 Mo.App. 102
• Parties: STATE ex rel, MARY L. TUEMLER, Relator, v. NAT GOLDSTEIN, Clerk of the Circuit Court, City of St. Louis, Respondent
• Court: Missouri Court of Appeals

237 S.W. 814

209 Mo.App. 102

STATE ex rel, MARY L. TUEMLER, Relator, v. NAT GOLDSTEIN, Clerk of the Circuit Court, City of St. Louis, Respondent

Court of Appeals of Missouri, St. Louis

February 7, 1922

PEREMPTORY WRIT AWARDED.

Peremptory writ awarded.

Edward A. Feehan for relator.

Spencer & Donnell and T. F. McDonald for respondent.

DAUES J. Allen, P. J., and Becker, J., concur.

OPINION

Mandamus. Original Proceeding.

DAUES J.

--This is an original proceeding by mandamus, brought by relator to compel the respondent, as circuit clerk of the city of St. Louis, to pay over to relator the sum of $ 900 held by said clerk under a bill of interpleader. The issuance of an alternative writ has been waived, and it has been agreed that the petition filed herein should be regarded for all purposes as the alternative writ. To this petition respondent has interposed a general demurrer, so that the case is before us upon an issue of law.

The facts are, briefly, these: The Mutual Life Insurance Company of New York on July 8, 1920, brought an interpleader suit in the circuit court of St. Louis against Mary L. Tuemler, Luella Rosborough, (nee Tuemler), St. Louis Coffee & Spice Mills and Frank B. Sanders, Public Administrator of Madison County, Illinois. The insurance company alleged that it had theretofore issued two insurance policies to Charles F. Tuemler in each of which his wife, Luella Tuemler, was made beneficiary; that in 1912, Luella Tuemler secured a divorce from her husband, by which decree her maiden name, Rosborough, was restored; that after the divorce Charles F. Tuemler applied to the insurance company to change the beneficiary in the policy from his former wife to his sister, Mary L. Tuemler. The insurance company, refused to make the change, for the reason that the beneficiary originally named in the policy did not consent thereto. It was also alleged that the St. Louis Coffee & Spice Mills and Frank B. Sanders, as administrator of the estate aforesaid, claimed an interest in the proceeds of the policies.

The cause was tried on the interpleas and judgment was rendered April 11, 1921, in favor of Mary L. Tuemler, and the respondent clerk was ordered to pay to her the fund which had theretofore been paid into court by the insurance company. On April 14, 1921, Luella Rosborough filed a motion for a new trial, which was overruled on April 18, 1921. Affidavit for an appeal was filed by interpleader Rosborough on May 23, 1921, and an appeal was thereupon allowed to this court. No bond was tendered to or approved by the court, and no time taken in which to give such bond. The decree was rendered and the appeal perfected at the April, 1921, term of the circuit court. Thereafter, on September 7, 1921, and during the June term of said court, interpleader Rosborough filed a motion to withhold the fund by the clerk until such time as this court might render a decision on the appeal taken at the April term, and at that time presented an appeal bond. The bond was approved. Although not material here, relator maintains throughout that the court approved this bond by inadvertence.

On September 23, 1921, a motion by relator to strike from the files the motion of interpleader Rosborough of September 7, 1921, was filed and sustained, and thus the Rosborough motion to withhold the fund in court was stricken from the files. Also, at the same time a motion to set aside approval of the appeal bond of September 7, 1921, was filed by relator and was sustained by the court. On September 26, 1921, interpleader Rosborough filed an affidavit for appeal, and thereupon an appeal was granted from the court's action in sustaining the relator's motion to strike the Rosborough motion (Sept. 7, 1921) from the files and vacating approval of the appeal bond of September 7, 1921. This appeal bond was fixed at $ 2000. Prior to the filing of this appeal bond, relator had filed her motion asking the court to set aside its order allowing the appeal and fixing the amount of the appeal bond. The motion of relator to set aside the order of September 26, 1921, fixing the mount of the appeal bond and allowing time in which to give such bond and granting an appeal was overruled on October 24, 1921, having been carried over to the October Term.

Relator made formal written demand on the respondent clerk for payment of the fund to her, and on being refused relator filed her petition in this court for a writ of mandamus.

Respondent, by memorandum, gives his reasons for refusing to turn over the fund in dispute to the successful litigant below, as follows:

First--Because the question as to whether it is necessary to give an appeal bond in order to effect a supersedeas when the fund which is the subject of the litigation is in the possession of the court has never been passed upon by any of the Appellate Courts of this State;

Second--"Whether supersedeas was or was not created by the granting of the appeal of May 23, 1921, without the giving of an appeal bond, the granting of an appeal on September 26, 1921, from an order striking from the files the motion of interpleader Luella Rosborough to require the holding of the fund in court, brought to the St. Louis Court of Appeals for ultimate decision the question as to the right of Luella Rosborough to have the court direct the clerk to hold the fund. Until the St. Louis Court of Appeals had passed upon this appeal, there was no final determination of the question raised by the motion to hold the fund in court. If, in advance of such final determination, the respondent paid the fund in question to the relator herein, he would have been taking the risk of what the decision of St. Louis Court of Appeals would be on the appeal from the action of the circuit court in striking from the files the motion to hold the fund in court."

We have permitted counsel for interpleader Rosborough to appear and file brief in opposition to relator's position.

The questions addressed to us for decision are, first: Whether the appeal at the April term, 1921, without bond, under the circumstances of this case, operates as a supersedeas , and, second: Whether the order of the circuit court of September 26, 1921, striking from the files the Rosborough motion to withhold the fund, constitutes an appealable order.

We have reached the conclusion that the appeal of May 23, 1921, without bond did not operate as a supersedeas, and, again, that the order of September 26, 1921, striking from the files the Rosborough motion to withhold the fund, was not an appealable order.

Section 1473, Revised Statutes 1919, relating to stay of execution on appeal, is as follows:

"Upon the appeal being made, the court from which appeal is prayed, shall make an order allowing the appeal, and such allowance thereof shall stay the execution in the following cases, and no other: First, when the appellant shall be an executor or administrator, guardian or curator, and the action shall be by or against him as such, or when the appellant shall be a county, city, town, township, school district or other municipality; 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 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 have accrued thereon, and the costs and damages that may be recovered in any appellate court upon the appeal, conditioned that the appellant 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 affirmed, and will pay all damages and costs that 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, and if any execution shall have been taken prior to the filing of said bond, the same shall be released."

Observably, under this statute the appeal bond must be given at the judgment term, or during the ten days of grace thereafter. Concededly, this statute was not complied with in the instant case, no bond having been given at the April term, or within ten days thereafter. But, says counsel for interpleader Rosborough, no bond is necessary when the funds are in the hands of the clerk as custodia legis, because a bond in such case serves no purpose. Counsel relies mainly upon the case of State ex rel. Guinotte, 156 Mo. 513, 57 S.W. 281, and upon a general statement contained in 3 Corpus Juris, 1296, both of which citations we will presently discuss.

The judgment (April 11, 1921) decreed that relator was entitled to the fund of $ 900 theretofore paid into the registry of the court, and that the remaining defendants had no right interest or title in said fund. It further decreed that the interpleaders, except the relator, take nothing by their respective interpleas; and "that the defendant, Mary L. Tuemler, recover of the defendant Luella Rosborough (formerly Luella Tuemler), St. Louis Coffee & Spice Mills, a corporation, and Frank B. Sanders,...