McGee v. Smith
104 Mo. App. 40
Mo. Ct. App.
1904
Check Treatment
BLAND, P. J.

(after stating the facts as above).— No instructions were asked or given and as there was no dispute but that a part of the costs that had accrued in the case of the City of Paris ex rel. Smith v. McGee et al., was unpaid, the only theory upon which the finding of the learned trial judge can be supported is that, in his opinion, the bond read in evidence varied from the one described in the petition and for that reason was excluded as evidence. .It is conclusively shown by the records of the Monroe circuit court that Smith, in the case of the City of Paris ex rel. Smith v. McGee et *44al., was required to file bond for tbe costs and that be complied with that order by filing a cost bond that was approved by the circuit clerk, and was thereafter permitted by the court to prosecute his suit to a final termination. It is also shown that at the time the cost bond read in evidence was filed there was no other suit pending in the Monroe circuit court wherein Smith was plaintiff and McGee et al. were defendants, so that it appears beyond a do,ubt that the bond offered in-evidence was the bond which Smith filed in the case of the City of Paris ex rel. Smith v. McGee et al. The bond was prepared by these defendants or their attorney and was signed by the defendants and filed by them in the court as security for the costs in the suit brought by Smith on McGee’s bond as marshal of the city of Paris. The city of Paris was but a nominal party to the suit, had no interest in it, and was not and could not be made liable for any of the costs. If there had been two suits pending in the Monroe circuit court wherein Smith was a party plaintiff and McGee a party defendant, in both of which an order had been made on plaintiffs to give security for costs, and the bond sued on had been filed after the making of such orders, there would b.e some question as to which of the two suits the bond was filed in. But there being but the one suit and but the one order to give security for costs, there can be no doubt that the bond was filed as security for costs in the only suit then pending wherein Smith was a plaintiff and McGee a defendant, to-wit, the case of the City of Paris ex rel. Smith v. McGee et al. Under this state of the proof the bond should have been admitted .as evidence for there is no material variance between it and the one alleged in the petition to have been filed.

It also seems to us that the defendants, having executed and filed a bond as security for costs in the suit wherein the City of Paris ex rel. Smith was plaintiff and McGee et al. were defendants, on the faith of which bond Smith was enabled to continue the prosecution of his *45suit and to force the defendants to incur additional costs in the preparation for and in presenting their- defense to the suit, they ought under the evidence in this case to be estopped to deny the bond offered in evidence was -the bond sued on.

The judgment is reversed and the cause remanded.

Reyburn and Goode, JJ., concur.