State v. Schmoll

• Decision Date: 24 April 1931
• Docket Number: No. 21801.,21801.
• Parties: STATE ex rel. MASON v. SCHMOLL, Circuit Court Clerk.
• Court: Missouri Court of Appeals

37 S.W.2d 972

STATE ex rel. MASON v. SCHMOLL, Circuit Court Clerk.

No. 21801.

St. Louis Court of Appeals. Missouri.

April 24, 1931.

Rehearing Denied May 1, 1931.

"Not to be officially published."

Proceedings by the State, on the relation of Carrie Mason, for writ of mandamus to be directed to John Schmoll, Clerk of the Circuit Court of the City of St. Louis.

Alternative writ quashed.

John B. Smith, of St. Louis, for relator.

Robert Burkham, Carter, Jones & Turney, and Louis J. Portner, all of St. Louis, for respondent.

HAID, P. J.

Relator seeks by mandamus to compel the payment of a judgment in her favor out of a fund in the registry of the circuit court of the city of St. Louis.

It appears that George Mason, an employee of the Pullman Company, was the holder of a benefit certificate in the Pullman Porters' Benefit Association at the time of his death on February 13, 1929; that his beneficiary was entitled to a fund of $1,000, and that Carrie Mason and Lucille Mason, each claimed such fund; that an agreement was entered into between said association and the two beneficiaries whereby it was provided that Lucille Mason file suit in the circuit court against the association, that the latter should enter its voluntary appearance, waiving service of process, that it file an answer setting up the claim of Carrie Mason to the same fund, admit its indebtedness to whomever might be the proper beneficiary, that the association pay into the registry of the court the amount of the certificate, "and that the final judgment in said cause shall be satisfied out of said fund, together with court costs"; that $989.50 is on deposit in pursuance of said agreement. On December 10, 1930, a trial was had resulting in a judgment in favor of Carrie Mason, from which appeal has been prosecuted without giving an appeal or supersedeas bond.

The relator relies for her contention that, in the absence of a supersedeas bond, she is entitled to have the fund paid to her, upon the decision in the case of State ex rel. Tuemler v. Goldstein, 209 Mo. App. 102, 237 S. W. 814. An examination of that decision discloses that the action of interpleader was brought by the insurance company against several claimants, who interpleaded for the fund, and judgment was entered in favor of one for the fund in court, and costs were adjudged against the others, with no bond given on appeal to supersede the costs thus adjudged against the unsuccessful claimants. It was held that the successful litigant was entitled to a bond to cover the costs and damages that may be recovered in any appellate court upon the appeal.

In the present case the action was instituted by one of the claimants, pursuant to the stipulation or agreement heretofore referred to, and that agreement provides specifically that both the final judgment and court costs shall be satisfied out of the fund deposited in court. Since the costs are to be paid out of the fund, under the stipulation, there can be no recovery against the losing claimant for any "debt, damages, and costs, or damages and costs" within the meaning of section 1022 of the Revised Statutes 1929, unless under the terms of the stipulation the judgment of the circuit court was the final judgment contemplated by the parties.

The relator contends that because the agreement declares that the association "is desirous of paying said fund to the proper beneficiary whose claim has been established in a court of competent jurisdiction" and the further provision "that said cause shall be assigned to a non-jury room for prompt trial" show that the intent and meaning of final judgment was a judgment by the circuit court.

A judgment is not final in the sense that it is conclusive upon the parties until the losing party has failed, within the time allowed by law, to perfect his appeal or,...