The State ex rel. Currier v. Falkenhainer
| Decision Date | 19 June 1920 |
| Citation | 223 S.W. 100,283 Mo. 203 |
| Parties | THE STATE ex rel. GEORGE A. CURRIER et al. v. VICTOR H. FALKENHAINER, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Writ quashed.
Christian F. Schneider for relators.
(1) This court has the power to issue a writ of mandamus in this case. Sec. 3, art. 6, Constitution; State ex rel. v Grimm, 220 Mo. 483; State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Smith, 172 Mo. 446 619; State ex rel. v. Weeks, 93 Mo. 499. (2) The bond offered was sufficient. Secs. 2038, 2042, R. S. 1909. (3) Rule No. 40 of the St. Louis Circuit Court is null and void because it is in contravention of the provision of said Section 2040, because it shortens the time given defendant by said statute in which to give such bond and makes requirements in the giving of such bond not provided in said statute. Said rule is therefore "unconstitutional." State ex rel. v. Withrow, 133 Mo. 500; Pelz v Bottinger, 180 Mo. 261; State ex rel. v Cockrell, 217 S.W. 529. Under the law, the pleadings in this case, and the facts as shown herein, the peremptory writ of mandamus ought to issue directing the respondent to file, read and consider the affidavit of Stephen L. Smith, and to approve and order filed as a supersedeas bond herein the said appeal bond signed by the said relators as principals and said Smith, Houghton and Currier as sureties.
Glen Mohler for respondent.
(1) The St. Louis Circuit Court has the authority to adopt reasonable rules of procedure for the orderly conduct of its business. Mo. Constitution, art. 6, sec. 27; Sec. 3859, R. S. 1909; Rigdon v. Ferguson, 172 Mo. 49. (2) The construction of Rule 40 placed upon it by that court, and giving to the person in whose favor an appeal bond is to be given the right to examine the proposed sureties as to their solvency, will be adopted by this court as the true construction. Mutual Life Ins. Co. v. Board of Assessors, 56 Mo. 510; State v. Fenly, 18 Mo. 445; 1 Elliott's General Practice, sec. 189; State ex rel. v. Ellison, 267 Mo. 326. (3) The burden is on the proponents of an appeal bond to establish its sufficiency to the satisfaction of the court whose duty it is to pass upon it. 3 C. J. 1175; Hagerty v. Lierly, 109 Mo.App. 631. (4) An affidavit is inadmissible as evidence unless expressly authorized by statute. 2 Wigmore on Evidence, sec. 1384; Hudson v. Applegate, 87 Iowa 605; Patterson v. Fagan, 38 Mo. 70; Hancock v. Whybark, 66 Mo. 672; Walsh v. Rogers, 13 How. 287; Pickering v. Townsend, 118 Ala. 351; Smith v. Feltz, 42 Ark. 355; Smith v. Weaver, 41 Pa.Super. 253; 2 Blackstone (Jones) p. 1983; 2 C. J. 373. (5) Rule 40 contravenes no law and is valid, and, as such, has the force and effect of law. Pelz v. Bollinger, 180 Mo. 252; Bank of Escondido v. Superior Court, 106 Cal. 43; Rigdon v. Ferguson, 172 Mo. 49; Brooks v. Boswell, 34 Mo. 474; 15 C. J. 904. (6) Mandamus does not ordinarily lie to control an inferior court in the exercise of its judicial discretion. High on Extraordinary Legal Remedies (3 Ed.), p. 254; State ex rel. Heman v. Flad, 108 Mo. 614. (7) To pass upon the sufficiency of an appeal bond involves the exercise of judicial discretion, and unless it is charged and clearly shown by relators that the decision of the respondent is not in the exercise of good faith of the discretion vested in him, mandamus does not lie to compel him to accept the bond. State ex rel. Heckel v. Klein, 137 Mo. 673; State ex rel. Reifsnider v. Goldstein, 200 Mo.App. 60; Linderholn v. Walker, 102 Kan. 684, 171 P. 603; State ex rel. Hubbard v. Speer, 173 P. 955; United States ex rel. Beal v. Cox, 14 D. C. App. 368; 3 C. J. 1302. (8) The demurrer to the return admits all facts properly pleaded therein, inter alia that the proposed surety Smith has, prior to the hearing, become insolvent, and is not sufficient to become surety on the appeal bond. State ex rel. Taylor v. Moss, 35 Mo.App. 441; Moses on Mandamus, p. 214; State ex rel. Witmer v. Conrad, 147 Mo. 654; State ex rel. Fitzpatrick v. Myers, 80 Mo. 601; 26 Cyc. 466.
In Banc
Mandamus.
This is a proceeding by mandamus brought in this court to compel the respondent, a judge of the Circuit Court of the City of St. Louis, to file and consider an affidavit touching the qualifications as surety of the person therein named, on an appeal bond, and to require such court, if said bond is found otherwise sufficient, to approve same.
In a judgment rendered in said circuit court in favor of one Duncan S. Werth and against relators and others, the relators appealed to this court, the amount of the appeal bond was fixed and time was given within which to submit testimony as to the sufficiency of the sureties. Within the time fixed the relators gave counsel for the plaintiff notice that they would on a day named present to the court for its approval their appeal bond. Said notice contained the names of the proposed sureties, with their places of residence and vocations, in conformity with rule numbered forty of said circuit court, which is as follows:
After the signing of said bond by the sureties and the giving of said notice, but before the day fixed for the presentation of the bond to the court, Stephen L. Smith, one of said sureties, became ill with an infectious disease, was removed to a hospital and could not be present in court at the time of the presentation of the appeal bond. Relators secured a sworn statement from him as to his age, residence and the description and value of his personal and real property over and above his liabilities. This affidavit was filed with the bond for the consideration of the court. An examination was made of the other two sureties as required by Rule 40. The court declined to consider the affidavit of the surety, Smith, as conforming to the requirements of said rule and held that the showing as to the property of the other two sureties over and above their liabilities did not authorize the approval of the bond, the amount of which had been fixed at $ 4000.
The discussion of other facts of more material relevance than the construction of the court rule quoted will suffice to determine the matter at issue. In passing, it may not be inappropriate to say that while this rule, in its terms, is not violative of the Constitution or our code of procedure where, within a reasonable exercise...
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