State v. Hennings

• Decision Date: 02 May 1916
• Docket Number: No. 15207.,15207.
• Citation: 185 S.W. 1153,194 Mo. App. 545
• Parties: STATE ex rel. GRAY et al. v. HENNINGS, Judge, et al.
• Court: Missouri Court of Appeals

185 S.W. 1153

194 Mo. App. 545

STATE ex rel. GRAY et al. v. HENNINGS, Judge, et al.

No. 15207.

St. Louis Court of Appeals. Missouri.

May 2, 1916.

"To be officially published."

Prohibition by the State, on the relation of Sarah E. Gray and another, against Thomas C. Hennings, Judge, and others. Order that the preliminary rule be made absolute, and writ so awarded.

E. T. & C. B. Allen and A. H. Morris, all of St. Louis, for relators. R. P. & C. B. Williams, of St. Louis, for respondents.

ALLEN, J.

This is an original proceeding instituted in this court to obtain a writ of prohibition directed to respondent, one of the judges of the circuit court of the city of St. Louis, prohibiting the carrying into effect of a certain order of that court during the pendency of an appeal therefrom.

The controversy out of which the proceeding before us arises pertains to the custody of a minor child of respondents William H. Waters and Frances D. Waters, viz., one William Henry Waters, about five years of age. It appears that these parents have been twice divorced, and have three times intermarried within about six years. The second divorce was granted by the circuit court of the city of St. Louis, presided over by respondent judge, on November 13, 1914, the court awarding the care, custody, and control of the child to these relators, Sarah E. Gray, an aunt, and Jesse H. Waters, an uncle of the child, and reciting in the decree that either party, plaintiff or defendant in the divorce action, might at any future time apply for a modification thereof with respect to the custody of the child.

On February 8, 1916, the parents of the child, having remarried some months theretofore, filed a joint application for a modification of this decree, relative to the custody of the child, and an amended application was filed on February 15, 1916. Acting upon the amended application, respondent, as judge of the circuit court, on March 13, 1916, made an order modifying the decree and awarding the custody of the child to its parents, they to pay the costs of the proceeding. Relators, after filing a motion for a new trial, which was overruled, filed their affidavit for appeal and were allowed an appeal to this court; the respondent judge fixing the appeal bond in the sum of $250, which was duly filed and approved. Thereupon, upon application of the child's parents, the respondent judge ordered that relators forthwith turn over and deliver the child to the parents, in compliance with the order modifying the original decree, to remain in the custody of said parents during the pendency of the appeal. Relators then applied to one of the judges of this court, in vacation, and were granted a preliminary writ in prohibition. To relators' petition before us the respondent judge has duly filed a return which admits the material facts charged by relators; and the cause is now before us on a motion of relators in the nature of a demurrer to the return.

The question involved is whether or not the allowance of the appeal to this court and the giving and approval of the appeal bond operates to stay the carrying into effect of the order appealed from, during the pendency of the appeal. The action of the learned circuit judge, respondent herein, in directing that the child be taken from the custody of relators and delivered to its parents, notwithstanding the granting of the appeal and the giving and approval of the bond, is predicated upon the idea that an appeal bond does not operate as a supersedeas in a proceeding of the character in question, under our statute. And this is the view advanced by respondent's counsel in opposition to the issuance of our peremptory writ.

The statute (section 2042, Rev. Stat. 1909) provides that the allowance of an appeal shall stay the execution (1) when the appellant is an executor or administrator, guardian or curator, or is a county, city, etc., or (2) "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 accrue thereon, and the costs and damages that may be recovered in any appellate court upon the appeal, conditioned," etc.

The position of respondent's counsel is that the proceeding is not one within the purview of the statute, and the appeal bond does not operate as a supersedeas, for the reason that no debt, damages, or costs were recovered by the judgment appealed from. But we regard it as clear that the statutory bond operates as a supersedeas, even though the judgment is not one for debt or damages, and even though no costs below were recovered thereby. In any event the bond covers costs to accrue on appeal. And when fixed and approved it operates, by the command of the statute, to "stay the execution" of the judgment in all cases where the judgment is of such character as to require something to be done to execute...