189 Mo. 468 | Mo. | 1905
This is a proceeding in equity for the correction and reformation of a certain indemnifying bond for $20,000, given by the defendant Schuchman to the defendant Viernow, dated June 30, 1897, and by the defendant Viernow assigned to the plaintiff on the fifteenth of September, 1898. The
The circuit court entered a judgment correcting the bond as prayed and further ordered “that the plaintiff recover of the defendant Gustavus Sehuehman, the sum of $20,000, the penalty of the bond sued on, together with its costs and charges herein expended, and that it's damages be assessed at the sum of $5,104.55 which includes an attorney’s fee of five hundred dollars ; and it is further ordered and adjudged that plaintiff have execution against said defendant G-ustavus Sehuehman for said sum of $5,104.55, its damages so assessed as aforesaid, together with its costs, and that the judgment be satisfied upon the payment of said sum..” The abstract of the record shows that the defendant Sehuehman filed a motion for new trial; that-the same was overruled, and that on the first of February, 1902, said defendant appealed the case to this court, and was given time in which to file a bond and a bill of exceptions. The records of this court show that no such appeal was ever filed in this court and that no steps whatever were taken thereon in this court. The return of the circuit clerk to the writ of error herein, certifies the fact to be that no appeal bond and no bill of exceptions were filed in said cause. The judgment appealed from was rendered by the circuit court on the twenty-second of February, 1902. Thereafter, on the twentieth of January, 1903, the plaintiff sued out this writ of error, and now asks this court to reverse the judgment and remand the cause to the circuit court with directions to re-enter the judgment so that it shall read, that the plaintiff have execution for the damages assessed, and that the judgment shall remain as a security for further breaches of the bond, instead of reading,
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Ordinarily this court would not grant the relief sought, but would leave the parties to their statutory remedy, under section 795, article 9, chapter 8, Revised Statutes 1899, to have the judgment corrected by the trial court, on motion, for irregularity. Under the statute aforesaid, such action cannot be taken in the trial court after the expiration of three years after the term at which the judgment was rendered. That time has now expired. The writ of error herein was sued out within one year after the judgment was entered, in conformity to section 837, article 12, chapter 8, Revised Statutes 1899. Unless, therefore, the plaintiff is granted the relief sought in this proceeding, it will be remediless in the premises.
The bond sued on is such a bond as is contemplated by section 473 et seq., article 1, chapter 6, Revised Statutes 1899, and is a bond conditioned to do a collateral thing. It is, therefore, such a bond as the statute contemplates shall be merged in the judgment and execution issued for the amount of the damages assessed, and the judgment shall stand as security for further breaches. The judgment of the circuit court, therefore, to the effect that the plaintiff should recover the penalty of the bond, that execution should issue for the damages assessed, and that upon payment of the damages the judgment shall be- satisfied, did not comply with the requirements of the statute. The plaintiff is, therefore, entitled to the relief sought, and, under the circumstances, that relief can only be granted by this court under this writ of error, and to prevent a failure of justice, the relief should be granted.
The case is here upon the record proper, and the point involved appears upon the face of the record proper.
It thus appears that the lease was for a term of ninety-nine years and that the bond given by the Building Company to the lessor, on which the plaintiff was surety, was conditioned for the faithful performance by the Building Company of the terms, conditions and covenants of the lease, and would therefore continue during the term of the lease. It further appears that the bond given by the defendant Sehuchman to Yiernow, when the latter sold and assigned his interest in the Building Company to the defendant, was a similar obligation and would run for a similar length of time.
It is therefore manifest that, as the bond was merged in the judgment, the liability of the defendant