212 S.W. 30 | Mo. Ct. App. | 1919
This is a suit on a bond given by defendant, Eva LaShot, on appeal from a judgment in a justice of the peace court in an unlawful detainer case. Below, a trial, before the court without a jury, resulted in a judgment in favor of plaintiff and against the sureties on the appeal bond. Being unsuccessful in a motion for a new trial the defendant sureties bring the cause to this court by writ of error.
Plaintiff below is defendant in error here, defendants below are plaintiffs in error here, but for convenience parties will be referred to as originally styled. The original cause which gave rise to the case at bar was tried before a justice of the peace in Pemiscot county on the 27th day of December, 1915. The trial resulted in a judgment in favor of plaintiff and against Eva LaShot for possssion of the premises sued for, monthly rents and costs. On December 31, 1915, defendant in the unlawful detainer case, Eva LaShot, filed with the justice her affidavit for appeal to the circuit court, and on that date the justice noted in his docket that the appeal was granted; and *511 on the 4th day of January, 1916, a bond was filed with the justice, and approved. The transcript of the justice was filed with the clerk of the circuit court January 6, 1916. The November term, 1915, of the circuit court was in session on December 8, 1915 at which time it adjourned to January 10, 1916. The defendant sureties contend that since the bond sued on in the instant case was not filed with the justice within six days after the rendition of the judgment in the unlawful detainer case, and transcript of the justice filed with the clerk of the circuit court within six days after the rendition of said judgment in the justice court, that the bond is a nullity, and void, and that they are not, therefore, liable thereon.
Section 7705, Revised Statutes 1909, dealing with unlawful detainer appeals provides that when the judgment of the justice is rendered during the vacation of the circuit court, the appeal therefrom shall be returnable to the first day of the next term; but if the judgment in the justice court be rendered during a term of the circuit court, the appeal is then returnable within six days. This question arises on the facts here: Was the judgment in the justice court rendered "during the term" of the circuit court or "in vacation?" If the judgment in the justice court was rendered during the term of the circuit court, then the appeal from the justice court was returnable within six days; if on the other hand the judgment in the justice court was rendered during the vacation of the circuit court then the appeal was returnable to the next term of the circuit court.
In Hadley v. Bernero,
While the decision in Hadley v. Bernero, supra, was not determined wholly by the construction quoted, yet that point was in issue, and the court gave its construction of the statute in question. In Warner v. Donahue,
In State v. Derkum,
On the other hand we find the Supreme Court in Lumber Company v. Keener,
The object and purpose of making an appeal in an unlawful detainer case returnable within six days was to obviate delay. [American Brass Mfg. Company v. Phillipi,
We do not believe that such a construction of section 7705 would be reasonable, or would express the *515
intention of the Legislature. The context of the law should be observed in arriving at the legislative intent, and when we read section 7705, having in mind that its purpose was to obviate delay, we can reach no other conclusion than that the appeal in the unlawful detainer case giving rise to the case at bar was returnable within six days after the judgment in the justice court. [St. Louis San Francisco Railway Company v. Gracy, 126 Mo.
Having reached the conclusion that the unlawful detainer appeal was returnable within six days from the rendition of the judgment in the justice court, the question then arises: What effect did the failure to file the bond with the justice and the transcript with the clerk of the circuit court within the time prescribed by the statute after the rendition of the judgment in the justice court have on the liability of the defendant sureties in the case at bar.
Under section 7705, Revised Statutes 1909, no appeal shall be allowed unless three things within the proper time be done, to-wit: (1) The appeal must be applied for; (2) affidavit must be filed with the justice; (3) satisfactory appeal bond must be filed with the justice. All these steps are essential before any appeal can be granted. In order for the justice to have had the power and authority to grant the appeal the affidavit therefor and the bond must have been filed with him on or before the first day of January, 1916. [Karicofe v. Schwaner,
Notwithstanding the fact that there was no appeal, are the defendant sureties liable because they voluntarily signed the appeal bond? We say no. In 4 C.J., sec. 3349, the general rule is stated thus: "Where no appeal can lawfully be taken in a given case, a bond given for no other purpose than the taking of such an appeal is wholly without consideration and therefore void. Where there is no order allowing an appeal or stay in proceedings, and such order is necessary to effectuate the appeal or stay, the appeal bond is void. If the appeal is not taken within the time provided by law, the court acquires no jurisdiction and the appeal bond is void. Where appellant fails to file a transcript of the case in the appellate court within the time prescribed by law, it has been held that the appeal has no existence, and consequently there is no consideration for, and no liability on, the appeal bond."
In support of the above quoted text Garnet v. Rodgers,
In support of the conclusion reached in the Garnet case, the court cites Barnett Ivers v. Lynch,
In Hessey v. Heitkamp, supra, the validity of an appeal bond is involved growing out of a suit where plaintiff Hessey sued one Allison before a justice of the peace under the landlord and tenant act for possession and accrued rent. Judgment was rendered for plaintiff and defendant took an appeal, with Heitkamp as a surety on the appeal bond. The court affirmed the judgment of the justice, but added nothing for the continued occupancy of the tenant during the pendency of the appeal. Execution was issued and the amount of the judgment was collected. The appeal bond contained a condition for the payment of "all rents that have or may accrue."
The proceedings in the justice court referred to in Hessey v. Heitkamp, supra, were in that case held to be void for certain reasons stated in the opinion. Notwithstanding the proceedings in the justice court it was apparently urged that the sureties were nevertheless obligated on the appeal bond, as a voluntarily obligation. The court in disposing of the case *519
said: "It might be held, upon grounds apparently satisfactory, that, notwithstanding the insufficiency of those proceedings, for the reasons stated, the recognizance might be binding on the defendant as a voluntary obligation. But the Supreme Court has long since settled the law, and this court has uniformly followed its rulings to that effect, that the recognizance is void for every purpose, and of no obligatory force whatever upon sureties, when the appeal is not properly taken from the judgment of the justice, or, which is the same thing in effect, when the circuit court has acquired no proper jurisdiction of the cause." [Citing Adams et al. v. Wilson, Garnet v. Rodgers, supra; and Moore v. Damon,
In Moore v. Damon, supra, it is held that an appeal taken from a judgment of a justice of the peace not taken in time is no appeal at all, and the appeal bond taken in such case is void. [See. also, to the same force and effect Graves v. Railroad,
It is our conclusion that there was no valid appeal from the justice of the peace court in the unlawful detainer case and that the act of the justice in granting the appeal under facts wascoram non judice and void. There being no appeal, the bond given therein was void and not binding on the sureties thereon, and defendants' demurrer should have been sustained.
The judgment below is reversed and cause remanded with directions to enter judgment for defendant sureties. Sturgis,P.J., and Farrington, J., concur. *520