Morris v. Scherer, 76 Mo. App. 401

Morris v. Scherer

76 Mo. App. 401 | Mo. Ct. App. | 1898

Lead Opinion

Bond, J.

On the fourth of March, 1898, Fred Scherer, William Schaefer and Fred Schwobel, filed a motion in the circuit court of the city of St. Louis, for a rule upon H. S. Harmon, a justice of the peace of said city, requiring him to allow an appeal in the case-of Nelson Morris et al. v. Fred Scherer et al., wherein he had rendered judgment against the movers, and wherein they alleged they took an appeal and executed a bond therefor, which was approved by said justice,, within ten days after the rendition of said judgment, notwithstanding which he had failed to allow such appeal and make proper return of the papers in said cause to the circuit court. The return of the justice in substance is, that the suit in question was begun and tried before him and was decided in favor of the plaintiffs therein; that one of the defendants and. his attorney, made any affidavit for an appeal and offered as security on a bond therefor one Otto W. Neslage; that the bond was for $700; that the respondent justice not being satisfied, after an examination, of the sufficiency of said surety, so informed the defendant and his counsel, and stated that he would have “to look up the standing of Mr. Otto W. Neslage, before accepting him on the seven hundred dollar bond:” that after such investigation he declined to allow the appeal, or to approve the bond. To this return the movers filed an answer averring in substance, that said justice allowed the appeal prayed by them.

It is stated in the briefs of appellants in this court *406as follows: “Upon the issue thus made, appellants and respondents on March 12th offered evidence tending to sustain their respective positions.” It is conceded in the record before us that the justice did in point of fact affix his approval to the bond tendered for the appeal. After hearing the evidence, the circuit judge found the issues for the defendant justice and overruled the motion, from which judgment an appeal was prosecuted to this court.

remedy, legal. The proceedings in this case are based on section 6333 of the Revised Statutes of 1889. The remedy provided is purely statutory and legal in its nature. It has been repeatedly held that similar proceecüngs, though triable by the court without a jury, are not reviewable on appeal as to the finding of facts made by the trial judge. Daudt v. Keen, 124 Mo. 105; St. Louis v. Wetzel, 110 Mo. 260; Smith v. Finn, 77 Mo. 499; Rubey v. Coal & Mining Co., 21 Mo. App. 159; Todd v. Terry, 26 Mo. App. 598; Chouteau v. Consoue, 1 Mo. 350. On the trial in the circuit court no declarations of law were asked or given, hence we are unaware of the legal theory applied to the conflicting evidence submitted to the circuit judge. The record shows ample testimony to sustain his finding of the facts. The judgment is therefore affirmed.

Judge Bland concurs for the reasons given in a separate opinion. Judge Biggs dissents.

Concurrence Opinion

SEPARATE OPINION BY JUDGE BLAND.

*407remedy: eqmta *406The justice found the surety on the appeal bond, deposited with him, insufficient. I have no criticism to make of this finding, for the evidence, to my mind, leaves the solvency of the surety in doubt. When the defendant was notified of the non-approval of his *407appeal bond by the justice, the time for taking an appeal had passed, so that he could not make good his right to an appeal by filing a new bond. The justice should have notified him in time to give a new bond, and, if the defendant’s testimony is to be believed, he was deprived of his right of appeal by the fault or negligence of the justice in failing to give timely notice of his non-approval of the bond. In the circuit court the defendant was in the attitude of asking the court to compel the justice to grant him an appeal without a sufficient appeal bond. This the court had no authority to do. The defendant, with his motion, or before its final termination, should have filed a good and sufficient appeal bond in the circuit court, or offered to do so, which I think he might have done under the liberal provisions of section 6333, Revised Statutes 1889. He neither did nor offered to do this, for which reason I agree to an affirmance of the judgment. To my mind, section 6333, supra, is equitable in its ^ermg aDC[ should be liberally construed, so as to prevent the denial of appeals from the judgments of justices of the peace on narrow and technical grounds. In my view of the statute the order to be made on the justice is in the discretion of the court or judge. This discretion should be judicially exercised, so as to carry out the liberality of the statutes concerning appeals from justices’ courts. This discretion, like any other discretionary action, may be reviewed by an appellate court; henee I do not concur in so much of the opinion of Judge Bond as holds that an appellate court is bound by the finding of the facts by the circuit court in a case under this statute if there is any evidence to support it, as in ordinary actions at law.