39 Mo. App. 306 | Mo. Ct. App. | 1890
On March 20, 1882, plaintiff obtained a judgment in the circuit court of Gentry county against a school district. Said school district duly appealed from the judgment and entered into an appeal bond
After this appeal was taken and after this bond was executed, by an amendment to the constitution of the state, the Kansas City Court of Appeals was created with jurisdiction, by the terms of said amendment, over Gentry county and of the appeal so taken to the supreme court. By a provision in such amendment and of a legislative act, the cause appealed as aforesaid was transferred by" the supreme court, along with many others, to the Kansas City Court of Appeals; which last-mentioned court afterwards, in due course, affirmed the judgment of the Gentry circuit court in said cause. Such judgment not being paid, this suit is instituted on the appeal bond; the breach alleged, being that defendants have not performed or complied with the judgment of the Kansas City Court of Appeals. The question is, does the failure to perform the judgment of the Kansas City Court of Appeals constitute a breach of the bond as to the sureties %
The rule, which from the frequency of its statement, has grown quite familiar is, that a surety has the right to stand on the letter of his bond. He stands or falls by the letter of his obligations. There is nothing flexible about his contract, nor do equitable or outside considerations enter into its phraseology in determining its meaning.
In this case the sureties have seen fit to limit their obligation, not to the result of the case generally, nor to the determination of an appellate court generally, but to a certain named court. They never intended, of course, to obligate themselves to perform the judgment
In Nofsinger v. Hartnett, 84 Mo. 549, the bond was to abide the judgment of the St. Louis Court of Appeals. The case was appealed to the St. Louis Court of Appeals and from thence to the supreme court, in which latter court the judgment of the circuit court was affirmed. In a suit on the original appeal bond, it was held that the sureties were not liable on the ground that the judgment was affirmed by the supreme court and not the court named in the bond. The court holds to the express terms of the bond and asks “where is to be found a judgment of the court of appeals affirming that of the circuit court?’’ And states that if such a judgment had been rendered it would be necessary to aver and prove. So, we may well ask in this case, where is the judgment of the supreme court affirming that of the circuit court of Gentry county ? No such judgment was ever rendered. The breach has not occurred. The contingency upon which the sureties’ liability was based has not happened. ' The fact that a breach could not occur by reason of a change of the law may be, and doubtless is, a misfortune to plaintiff, but this ought not to alter the letter of defendants’ obligation.
In Sharp v. Bedell, 5 Gil, (Ill.) 88, an appeal was taken from the judgment of a justice of the peace to the circuit court of Hancock county and an appeal bond given conditioned to abide the judgment of the circuit court of Hancock county. After getting into the circuit court of Hancock county a change of venue was taken to another county. It was held that the judgment of the latter court did not meet the condition of
It is suggested in argument for plaintiff that the parties must be held to have known and contemplated that the law could create new tribunals and change jurisdiction o.f those already established. This is true, but defendants were not contracting with reference to the power to amend the constitution. They should only be held to have contemplated existing law. If there had been a statute covering, in general terms, the matter here presented the contention would' have been entitled to serious consideration as affecting the letter of the contract.
The result of the foregoing is that we reverse the judgment.
