State ex rel. Wolff v. VoGel
| Decision Date | 18 February 1879 |
| Citation | 6 Mo.App. 526 |
| Parties | STATE OF MISSOURI, EX REL. DOROTHEA WOLFF, Appellant, v. CHARLES F. VOGEL, Respondent. |
| Court | Missouri Court of Appeals |
1. An appeal does not operate a supersedeas unless the statutory prerequisites thereto are strictly complied with.
2. An appeal-bond was given in the Circuit Court, conditioned to perform such judgment “as the Supreme Court may give, or such as the Supreme Court may compel the Court of Appeals or Circuit Court to give.” The Court of Appeals affirmed the judgment, from which affirmance an appeal was made to the Supreme Court without other bond. Held, that such appeal did not operate a supersedeas.
3. Mandamus will lie to compel a circuit clerk to issue execution where he has wrongfully refused to do so.
4. The statute concerning appeals and supersedeas applies to appeals to the Supreme Court from the Court of Appeals, by virtue of the Constitution
APPLICATION for mandamus.
Peremptory mandamus issued.
KEHR & TITTMAN, for relator.
LOUIS GOTTSCHALK & R. E. ROMBAUER, for respondent.
This is an original application to this court for a mandamus. The petition states that on March 5, 1877, the relator obtained in the St. Louis Circuit Court a judgment against Henry B. Berning for the penal sum of $60,000, with an order of execution for the sum of $2,329.22, part thereof, with costs, etc.; that thereupon said Berning took an appeal to the St. Louis Court of Appeals, giving a bond which was duly approved by the Circuit Court, and which is copied at length into the petition; that on May 28, 1878, the Court of Appeals affirmed the judgment of the Circuit Court, and, on June 14th following, issued its mandate accordingly, which was duly filed in said Circuit Court; that on June 4, 1878, said Berning took an appeal from the Court of Appeals to the Supreme Court, upon his application and affidavit only, without giving or tendering any appeal-bond whatever; that on January 8, 1879, the relator demanded of the defendant in this proceeding, who was and still is the clerk of the St. Louis Circuit Court, that he issue an execution for the enforcing of the judgment of said Circuit Court above mentioned, but that the defendant refused so to do; that the relator thereupon applied to said Circuit Court for an order directing the clerk to issue an execution on said judgment, which order was refused. The petition prays for a mandamus to compel the defendant to issue the execution as demanded.
The defendant's return upon the alternative writ admits the facts stated in the petition, and alleges that, prior to the taking of the appeal to the Supreme Court, said Berning caused a notice to be served on the relator, to the effect that he would apply to the Court of Appeals for an appeal to the Supreme Court, to be granted upon his affidavit, and upon the same bond which had been approved by the Circuit Court, and which in its terms provided for an appeal to the Supreme Court. Hereupon the relator moves for a peremptory writ upon the face of the return.
The statutory provision for a stay of execution upon appeal granted is as follows: “Upon the appeal being made, the Circuit Court shall make an order allowing the appeal, and such allowance thereof shall stay the execution in the following cases, and no other: * * * 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, * * * conditioned that the appellant will prosecute his appeal with due diligence to a decision in the Supreme Court, and shall perform such judgment as shall be given by the Supreme Court, or such as the Supreme 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 which may be awarded against the appellant by the Supreme Court.” By art. 6, sect. 15, of the Constitution it is provided that all laws relating to the practice in the Supreme Court shall apply to this court so far as the same may be applicable. It results that the statutory bond for an appeal to this court must be in the form above transcribed, except that the St. Louis Court of Appeals will be substituted for the Supreme Court wherever this is mentioned. The bond which was given in the Circuit Court in the present case properly contained these substitutions, but contained also a stipulation binding the appellant to perform such judgment “as the Supreme Court may give, or such as the Supreme Court may compel the Court of Appeals or Circuit Court to give.” This additional stipulation is supposed by the defendant to operate a stay of execution pending the appeal from this court to the Supreme Court. He does not show us, however, any statutory provision authorizing the interpolation, or attaching to it the effect claimed.
Under the common law, the writ of error or certiorari operated by its own inherent force to stay execution of the judgment. Ou...
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Zellars v. National Surety Co.
...Krieger, 88 Mo. 160; Bauer v. Cabanne, 105 Mo. 110; Schuster v. Weiss, 114 Mo. 158; Warner v. C. M. L. I. Co., 109 U.S. 357; State ex rel. v. Vogel, 6 Mo.App. 526; Deatherage v. Sheidley, 50 Mo.App. 497; Co. v. Kermis, 79 Mo.App. 111. (2) The suit could not be maintained by Isadore Zellars ......
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Zellars v. National Surety Co.
...various changes of the statute in mind when we are reading the cases to which we are referred. The earliest case cited is State ex rel. v. Vogel, 6 Mo. App. 526. Before the establishment of the St. Louis Court of Appeals, the only court, as we have already said, to which an appeal could be ......