State v. Dillon

• Decision Date: 23 March 1889
• Citation: 11 S.W. 255,98 Mo. 90
• Parties: STATE ex rel. DUGGAN v. DILLON, Circuit Judge, et al.
• Court: Missouri Supreme Court

11 S.W. 255

98 Mo. 90

STATE ex rel. DUGGAN v. DILLON, Circuit Judge, et al.

Supreme Court of Missouri.

March 23, 1889.

APPEAL — BOND — SUPERSEDEAS.

Rev. St. Mo. § 3713, provides that, to make the appeal operate as a stay of execution, the appellant must give bond in a penalty double the amount of whatever debt, damages, and costs "have been recovered," etc.; and that the court may, at the time of granting the appeal, "fix the amount of the appeal-bond; * * * and the bond thus filed and approved shall stay execution." Held, that the order of the court approving the bond and allowing the appeal is a determination that the amount of the bond is sufficient, and operates as a supersedeas, regardless of the actual amount of the bond.

Prohibition.

A. J. P. Garesche, and Edmond & E. A. B. Garesche, for relator. Cunningham & Eliot, for respondents.

BLACK, J.

A rule was made in this case upon Daniel Dillon, judge of St. Louis circuit court, the clerk thereof, and the public administrator having in charge the estate of Michael Carroll, to show cause why they should not be prohibited from disbursing certain moneys deposited in the court in a cause of Tittman, Public Administrator, v. John Thornton, Peter Richard Kenrick, and Michael Duggan; and the question now is whether the rule shall be discharged or made absolute. Michael Carroll commenced a suit in the St. Louis circuit court against John Thornton and Peter Richard Kenrick, and Duggan was made a party defendant upon his own motion. From the proceedings in that case it appears that Mr. Carroll recovered a judgment in the state of Iowa against John Thornton, who is a resident of that state, and upon which execution was issued and no property found. Peter Richard Kenrick holds, as trustee, a fund of $20,000, the income of which fund is payable to John Thornton during his life, according to the terms of the will of a deceased uncle. The plaintiff in that suit seeks to subject the accrued and accruing income to the payment of his foreign judgment. Duggan, who is a defendant in that suit, and the relator here, makes claim to the income. By consent of all of the parties, an order was made requiring Kenrick, the trustee, to pay the accrued and accruing interest to the clerk, to be by him held subject to the order of the court. Pursuant thereto the trustee has paid into court, in all, the sum of $3,000. Carroll died, and the cause was revived in the name of the public administrator. On the 26th January, 1888, the court made a decree by which it is adjudged that there is due from Thornton to the plaintiff the sum of $6,323.19; that the income arising from the $20,000 fund be applied to the payment of the debt; that the trustee pay to the clerk the income thereafter to accrue during the life of Thornton, or until the debt and costs of suit are satisfied; and that the fund then in court, after the payment of costs, be paid to plaintiff. A bill of exceptions was filed, and the record discloses this entry: "Now, comes Alexander J. P. Garesche, agent and attorney for the defendants, and files an affidavit for an appeal, and on his motion an appeal is allowed them to the St. Louis court of appeals from the judgment herein rendered. They thereupon file an appeal-bond, which is allowed by the court." The appeal-bond is in the sum of $850, and is in the usual form. The court of appeals transferred the cause thus appealed to it to this court. The circuit court, at a term subsequent to that at which the appeal was allowed,...