116 Mo. App. 624 | Mo. Ct. App. | 1906
A demurrer having been sustained to the appellant’s petition, he stood on his pleading and refused to amend; whereupon the petition, which was in the nature of a bill in equity, was dismissed and final judgment entered against him. He appealed.
According to the averments of the petition, the Ee
Plaintiff contends that his petition stated a good cause of' action. The only ground of demurrer was that it did not.
The statutes provide that on an appeal from a justice’s court, if the judgment of the justice is affirmed, or on a trial anew in the circuit court the judgment goes against the appellant, such judgment shall be rendered against him and his sureties on the recognizance for the appeal. [R. S. 1899, sec. 4081.] The next section provides that if an execution is issued on such judgment and the principal does not pay it, and the officer cannot find sufficient property of the principal to satisfy the same, such officer shall specify in his return by whom the money was paid. [Sec. 4082.] The succeeding section provides that if a surety on the appeal bond pays a judgment against his principal in full or in part, the surety shall be entitled to a judgment on motion against the principal for the amount paid by him with interest. [Sec. 4083.] Those statutes authorize a judgment against a surety on an appeal bond only in connection with a judgment against the principal. They do not intend that the plaintiff in a cause which has been appealed from a justice’s court, may dismiss the proceeding in the latter court as to the defendant and take judgment against his surety. Such a rule is not to be in-grafted on the statutes, for it is incompatible with the general doctrine of the law regarding sureties, whose liability is discharged by a release of the principal. Moreover as to the sureties, the statutory remedy is summary,
Neither was the present appellant necessarily guilty of negligence in the matter. Sq flagrant a departure from the statutory procedure was not to' be expected; and it is well known that sureties on appeal bonds in cases appealed from justices’ courts are not accustomed to look after the case in the circuit court, but rely rather on the party to the suit for whom they are sureties doing so and on the regular statutory steps being pursued. It would not be likely to occur to a-surety that his principal might be released and judgment entered against him. But the essential fact is that the petition avers fraud in procuring the judgment. Whether this fraud consisted in. a collusive arrangement between the parties to the case, pursuant to which the cause against the defendant was dismissed and judgment taken against Crow; or whether the judgment was in violation of an arrangement to dismiss the cause entirely; or whether the fraud was of some other form, the petition does not say; as perhaps it ought. But the proceeding below was so unusual and such an injustice to appellant, that we think the facts ought to be investigated to see whether ground for equitable interference exists; and we think it does exist, unless Crow knew in advance of the'action contemplated and did not oppose it, or obtained knowledge of what had been done in time to take steps to have the judgment against him set aside during the term when it was rendered. We do not say the appellant had no right of appeal, but the circumstances stated warrant an inquiry.
No attempt has been made to support the ruling of the lower court on the demurrer; the respondent’s counsel having confined their suggestions to the proposition that the appeal cannot be considered because no motion for new trial or bill of exceptions was filed by the appel
The judgment is reversed and the cause remanded with the direction to overrule the demurrer.