State v. Gates

• Decision Date: 23 February 1898
• Citation: 143 Mo. 63,44 S.W. 739
• Parties: STATE ex rel. PATTON et al. v. GATES, Circuit Judge.
• Court: Missouri Supreme Court

44 S.W. 739

143 Mo. 63

STATE ex rel. PATTON et al. v. GATES, Circuit Judge.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

APPEALS — JURISDICTION — EFFECT OF ORDER ALLOWING APPEAL — RECOGNIZANCE — STAY OF EXECUTION.

Under Rev. St. 1889, § 2246, as amended by Acts 1891, p. 70, and Acts 1895, p. 91, authorizing an appeal from any order granting a new trial in any civil cause; and section 2249, declaring that the recognizance therein provided for shall have the effect to stay execution pending the appeal, — the order granting such appeal suspended all further exercise of judicial functions in such cause by the court below, and transferred the jurisdiction thereof to the appellate court, until the determination of such appeal, though no such recognizance was given; and therefore a motion for a trial of such cause, notwithstanding such appeal, was properly overruled.

Petition in the name of the state, at the relation and to the use of Verne Patton and others, by Frank S. Patton, their next friend, for a writ of mandamus to Edward P. Gates, as judge of division No. 3 of the circuit court of Jackson county, requiring him to try a certain cause notwithstanding a pending appeal therein. Writ denied.

Botsford, Deatherage & Young, J. M. Cleary, and Brown, Hadley & Swift, for relators. Lathrop, Morrow, Fox & Moore, for respondent.

BRACE, P. J.

On the 26th of December, 1895, the relators brought an action in the circuit court of Jackson county, at Kansas City, against the Grand Avenue Hotel Company, to recover damages for the death of their father, Fred C. Patton, who was killed on the 27th of December, 1894, while in the service of said company, operating its boiler and furnace, by the explosion thereof. The cause coming on for trial at the April term, 1896, of said court, before division No. 3 thereof, after hearing all the evidence the court instructed the jury to return a verdict for the defendant company, which was accordingly done. Thereupon the plaintiffs in due time filed their motion for a new trial, which, coming on to be heard at the October term, 1896, was sustained, on the ground that the court erred in instructing the jury to return a verdict for said defendant company. Thereupon the hotel company, in due form, took an appeal to this court from said order of the circuit court granting a new trial. Afterwards, at the April term, 1897, of said circuit court, the plaintiffs (relators herein) applied to the respondent, as judge of said court, presiding in division No. 3, by motion, for a trial of said cause notwithstanding the appeal, which motion was then and there overruled and refused. Afterwards application by petition filed on the 26th of June, 1897, was made to this court by relators for a writ of mandamus requiring the respondent to proceed with the trial of said cause notwithstanding said appeal, on the ground that, no appeal bond having been given on said appeal, such proceeding was not thereby stayed. To the petition respondent appeared, waived issue of alternative writ, and made return setting up the facts aforesaid, and admitting that no bond was given on said appeal, as alleged in the petition. Thereupon the relators filed two motions: First, to strike out a part of the return; and, second, for a peremptory writ upon the facts stated in the petition.

1. That part of the return to which the motion to strike out is directed consists simply of the remarks made by the judge presiding in division No. 3, in explanation and support of his action in sustaining the motion for a new trial; and, being impertinent to the real issue tendered by the return, that motion will be sustained.

2. The question raised by the second motion is whether, under the statute, an appeal from an order of the circuit court granting a new trial without bond stays the trial of the cause in the circuit court, pending such appeal in the appellate court.

By the statute governing the case it is provided as follows:

"Sec. 2246. Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case. The supreme court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket." Sess. Acts 1895, p. 91.

"Sec. 2249. Appeals Shall Stay Execution, When. — 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: First, when the appellant shall be an executor or administrator, guardian...