111 Mo. App. 52 | Mo. Ct. App. | 1905
On November 23, 1903, an opinion was banded down in this case by this conrt wherein it was directed that tbe judgment of tbe circuit court be reversed and remanded and tbat tbe circuit court “give judgment for tbe plaintiff as prayed in bis petition. ’ ’ On tbe 14th day of December, 1903, tbe said court in obedience to said directions entered up judgment against defendants for tbe sum of $566.85, including interest and costs, to bear ten per cent interest, it being tbe rate of interest borne by said judgment. The judgment so entered was in strict accordance with tbe directions of this court. On tbe 9th day of January, 1904, tbe defendant sued out a writ of error from tbe Supreme Court. On tbe 2d day of Juñe, following, on motion of defendant in error tbe Supreme Court ordered tbat tbe cause be certified to this court for want of jurisdiction in said court, which was accordingly done. On July 15, 1904, tbe defendant in error filed in this court a motion to dismiss or affirm tbe judgment of tbe circuit court, and to award damages not exceeding ten per cent upon tbe original judgment. ■ Tbe plaintiff in error does not deny tbat defendant in error is not entitled to an affirmance of tbe judgment on bis motion, but insists tbat to impose tbe penalty asked would be a hardship.
There can be no doubt but what the action of tbe plaintiff in error in suing out this writ was not justified by tbe record. Tbe rule announced by tbe Supreme Court in such cases is tbat, “where a case is remanded by us with directions for further proceedings, tbe case does not occupy the same status as if it bad been simply
Ordinarily, damages should be imposed upon a party who prosecutes a writ of error or appeal without any apparent justification, and this presents a case of that character. But as the plaintiff in error stands in the relation of trustees for the school funds of the dis-trict, we are not disposed to impose such damages, as it would, to the extent of such damages, deprive the children of the- district of the means of education.
The motion of defendant in error for an affirmance of the judgment is sustained,' but, for the reason given, that asking imposition of damages is denied.
