Zellars v. National Surety Co.

• Decision Date: 27 January 1908
• Citation: 108 S.W. 548,210 Mo. 86
• Parties: ZELLARS v. NATIONAL SURETY CO.
• Court: Missouri Supreme Court

108 S.W. 548

210 Mo. 86

ZELLARS v. NATIONAL SURETY CO.

Supreme Court of Missouri.

January 27, 1908.

Rehearing Denied February 27, 1908.

1. BONDS — CONSTRUCTION — STATUTORY BONDS.

Statutory bonds, executed in the form prescribed by the statute, are to be construed as though the law requiring and regulating them was written in them, as respects the rights of both principal and surety.

2. APPEAL — LIABILITY ON BOND — NATURE OF OBLIGATION — "APPELLATE COURT."

Plaintiff having obtained a judgment for $4,000 in a former suit in 1898, defendant therein appealed to the Supreme Court, which at that time had jurisdiction of appeals from the circuit court where the amount in dispute exceeded $2,500. An appeal bond was given in the words of Rev. St. 1899, § 809 [Ann. St. 1906, p. 777], relating to appeal bonds, which recited the appeal to the Supreme Court, and was conditioned that, if defendant should prosecute its appeal to a decision "in the appellate court," and should perform the judgment given by such court, or such as the appellate court might direct the circuit court to give, etc., the obligation should be void. Subsequently the St. Louis Court of Appeals and the Kansas City Court of Appeals were given jurisdiction in cases where the amount in dispute did not exceed $4,500, and the Supreme Court was directed to transfer pending cases within that limit to the proper Court of Appeals. In pursuance thereof the appeal in plaintiff's case was transferred to the Kansas City Court of Appeals, where the case was heard. Held, that the condition for the performance of the judgment when affirmed by the "appellate court" meant the court with jurisdiction to affirm the judgment, and the surety was not absolved from liability because the affirmance was by the Court of Appeals instead of the Supreme Court.

3. SAME.

Since at the time the appeal bond was executed the Supreme Court was the only court to which the appeal could be taken, the recital in the appeal bond that the appeal had been taken to the Supreme Court merely recited a fact that already appeared on the face of the bond by necessary inference, and hence was unnecessary and of no force.

4. CONSTITUTIONAL LAW — VESTED RIGHTS — RIGHT OF APPEAL TO CERTAIN COURT.

A party has no vested right to have his cause heard and finally decided on appeal by the court which, under the law at the time the appeal was taken, had jurisdiction of it, but the state may rearrange its judicial system and re-assign the duties of the several courts.

5. APPEAL — ACTIONS — PARTIES — SUING ON BOND GIVEN TO GUARDIAN.

Where an appeal bond is executed to the natural guardian of a minor, the guardian will be treated as a trustee for the minor, and, under the statute authorizing a suit to be brought in the name of the real party in interest, the minor when he comes of age may maintain a suit on the bond in his own name.

In Banc. Appeal from Circuit Court, Jackson County; Shannon C. Douglass, Judge.

Action by Isadore Zellars against the National Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Edward C. Wright, Kimbrough Stone, Frank Hagerman, and Trimble & Braley, for appellant. J. L. Minnis, for respondent.

VALLIANT, J.

This is a suit on an appeal bond, in which the defendant is surety. In November, 1898, the plaintiff, then a minor suing by his mother as his natural guardian, recovered a judgment in the Carroll circuit court for $4,000 against the Missouri Water & Light Company. An appeal was taken to the Supreme Court by the defendant in that case, who executed this appeal bond in the penalty of $8,500, with the defendant in this case as surety. While that appeal was pending in this court, the General Assembly by an act approved March 20, 1901 (Laws 1901, p. 107), conferred on the St. Louis Court of Appeals and the Kansas City Court of Appeals jurisdiction of appeals and writs of error in cases where the amount in dispute, exclusive of costs, did not exceed the sum of $4,500, and directed this court to transfer all cases within that limit then pending here which had not been submitted to the proper Court of Appeals. In obedience to that law this court, April 17, 1901, transferred this cause to the Kansas City Court of Appeals, where it was heard, and March 3, 1902, the judgment of the circuit court was affirmed. Afterwards, January 12, 1903, the plaintiff, having then attained his majority and the judgment being unsatisfied, brought this suit against this defendant as the surety on the appeal bond. The suit resulted in a judgment in the circuit court in favor of the plaintiff for $5,332.60 and costs, from which judgment the defendant has appealed.

1. The defendant contends that it is not liable, as for a condition broken in the appeal bond sued on, because, it says, the bond, as by its terms will appear, was given to secure the payment of the judgment if it should be affirmed by the Supreme Court, not if it should be affirmed by the Kansas City Court of Appeals, and, since the judgment has never been affirmed by the Supreme Court, there has been no breach of the condition. That contention raises the vital question in this case.

The bond in question is in these words: "Know all men by these presents: That the Missouri Water & Light Company as principal, and the National Surety Company, a corporation, as surety, are held and firmly bound unto Mary Zellars, the natural guardian and curator of Isadore Zellars, in the penal sum of eight thousand five hundred dollars ($8,500) good and lawful money of the United States, well and truly to be paid and for the faithful payment of which the above bounden obligors hereby bind themselves, their successors and assigns firmly by these presents. The conditions of the above obligation are such, that, whereas, on the 18th day of November, 1898, in a certain action pending in the circuit court of Carroll county, Missouri, at Carrollton, at the November term thereof, wherein the said Isadore Zellars, by his natural guardian and curator, Mary Zellars, was plaintiff and the said Missouri Water & Light Company was defendant, the said plaintiff recovered a judgment against the Missouri Water & Light Company in the sum of four thousand dollars and costs; and, whereas, the Missouri Water & Light Company has appealed from said judgment and the order of said court to the Supreme Court of the state of Missouri; and, whereas, the circuit court of Carroll county, Missouri, fixed the amount of said bond at $8,500 and allowed the appellant ten days in which to file said bond conditioned as by law required: Now, therefore, if the Missouri Water & Light Company shall prosecute its appeal with due diligence to a decision in the appellate court and shall do and perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the said Missouri Water & Light Company shall also comply with and perform the judgment of the circuit court of Carroll county, Missouri, if the said judgment or any part thereof be affirmed by the appellate court and in so far as it may be affirmed, and shall well and truly pay all damages and costs that shall be awarded against it by the appellate court, then the above obligation shall be null and void; otherwise to remain in full force and effect."

Section 809, Rev. St. 1899 [Ann. St. 1906, p. 777], prescribes when an appeal may stay execution: "First, when the appellant shall be an executor," etc. (not applicable here); "second, 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 of double the amount of whatever debt, 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 that the appellant will prosecute his appeal with due diligence to a decision in the appellate court and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court to give, and if the judgment of such court or any part thereof, be affirmed that he will comply with and perform the same so far as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by any appellate court." The bond in this case was conditioned in the language of the statute, except that in the last part of the clause stating the condition it says, "pay all damages and costs that shall be awarded against it by the appellate court," whereas the statute in that connection says "any appellate court." But that is immaterial in this case because no damages or costs were awarded by the appellate court. The vital clause in the condition of this bond is that the appellant will pay the judgment rendered by the circuit court if it should be affirmed. It is recited in the bond that the appeal was taken to the Supreme Court, but elsewhere in the bond the court whose judgment in the appeal is to be observed is designated as "the appellate court." Appellant contends that, the Supreme Court having been named as the court to which the appeal was taken, all subsequent mention of the appellate court necessarily meant that court.

All statutory bonds are to be construed as though the law requiring and regulating them was written in them. It will therefore help us to understand the force of the decisions interpreting appeal bonds to which we are referred in the briefs, if we will glance back and observe the changes that have been made in our law on this subject. Until the adoption of the Constitution of 1875 there was but one court to which appeals from the circuit court could be taken, to wit, the Supreme Court; but that Constitution created the St. Louis Court of Appeals and...