Byrne v. Harbison

1 Mo. 225 | Mo. | 1822

Jones, J.,

delivered the opinion of the Court.

The defendant, by his counsel, moved this Court to grant him an appeal from a decree rendered against him, in favor of Morgan Byrne, in the Circuit Court of CapeGirardeau county, at the December term, 1821; or, to grant him a writ of mandam- , us, directed to the said Circuit Court, commanding that Court to grant said appeal. It appears by the records of the Circuit Court, as certified to this Court, that the defendant, by his solicitor, in April term, 1822, applied to the said Circuit Court for an appeal, and ofFered Daniel Steinbeck as secutrity, which security was approved of by the Court; but the application was overruled, on the ground that it was, then, too late to appeal, the decree having been obtained at the last term of the Court; in consequence of which refusal, the above motion was made. This Court does not conceive that a mandamus ought to issue to the Circuit Court, as prayed for, because the defendant has a more appropriate remedy, by virtue of the 6th section of the act, regulating the proceedings of the Supreme Court, which provides, that the Supreme 'Court, or any Judge thereof, in vacation, may grant a supersedeas to-the decrees, or judgments of the Court of Chancery, or Circuit Courts, and allow appeals from the decrees of the former, upon giving bond, and taking the oath as therein mentioned. As the defendant may, if he thinks proper, apply for such supersedeas.

The motion is overruled.