State ex rel. Blair v. Garnett Mining Co., 169 Mo. App. 79

State ex rel. Blair v. Garnett Mining Co.

169 Mo. App. 79 | Mo. Ct. App. | 1913

OPINION.

STURGIS, J.

Before taking up the discussion of the vita] issues in this casé, it is necessary to dispose of some preliminary matters. On October 4, 1912, de*88fendant in error filed in this court a motion to quash the writ of error alleging as a ground that all of the parties, against whom judgment in this case was rendered in the circuit court, were living at the time of bringing this writ, and that they have not joined in the same as provided in section 2058, Revised Statutes 1909. It is true, the judgment was against “the defendant and W. M. Kavanaugh, O. C. P'layter and D. N. Friend.” It is also true that this writ was sued out solely by the Garnett Mining Company. This would be fatal but for the fact that the section of the statute mentioned provides a remedy which was acted upon in this case by D. N. Friend and C. O. Playter, who, on October 7, 1912, applied to this court in writing to be permitted to join in the writ of error and to have the writ and proceedings amended by inserting their names, thereby claiming the benefit of section 2066, Revised Statutes 1909. Their application is sustained. The judgment also went against W. M. Kavanaugh. This was erroneous, for the record plainly shows that plaintiff dismissed the cause as to him in Justice Scafe’s court, and he is not and should not be before this court,

We find also among the papers 'filed in this court a suggestion of the death of F. P. Blair, the relator, which is alleged and shown to have occurred on March 30, 1912, while the judgment in the circuit court was not rendered until May 11, 1912. Plaintiffs in error claim that the judgment was therefore rendered invalid. Under section 1925, Revised Statutes 1909, the suggestion of death in this case should have been made to the trial court as the affidavit furnished by plaintiffs in error shows that the death occurred prior to the rendition of the judgment of that court. The statute does not authorize the substitution of any person by the appellate court to act in relator’s stead unless his death occurred while the cause is pending in the ap^ pellate court.

*89With reference to the Garnett Mining Company, there can be no doubt as to the validity of the judgment against it, because, although the case was. incorrectly entitled, and a number of notices, applications and record entries in the justices’ courts were incorrect in that they were not entitled, 4 4 State of Missouri ex rel. F. P. Blair,” etc., nevertheless, the Garnett Mining Company in Justice Smith’s court agreed to a continuance in a stipulation correctly entitled, and filed an affidavit and bond in Justice Scafe’s court to appeal the case to the circuit court from a judgment rendered against it wherein, according to the transcript of the justice, the cause was entitled correctly; not only that, but in the circuit court where the cause was entitled correctly, defendant filed an application for a change of venue and a motion to dismiss. So that it is apparent that the defendant, Garnett Mining Company, entered its appearance a number of times, and although numerous errors were made of a clerical nature, any one reading the record will readily see that this defendant was not in any way misled by them.

The “comedy of errors” enacted in the progress of this case in the various courts so far as the jurisdiction is concerned is of little importance on the theory that “All’s well that ends well,” and that the appearance of defendant in the circuit court, if not in the justice’s court, by filing motions, etc., waives the irregularities and gave that court jurisdiction to render the judgment it did against the Garnett Mining Company.

A different question is presented as to the judgment against the sureties on the appeal bond. It may be and is granted that any irregularity or insufficiency in the affidavit or bond for appeal would not deprive the circuit court of jurisdiction over the case on the appeal where the appeal is granted 'and the transcript and papers lodged in the circuit court. This is plainly so for the reason that section 7580, Revised Statutes, 1909, provides that no appeal allowed by a justice shall *90be dismissed for want of an affidavit or recognizance, or because the affidavit or recognizance made is defective or insufficient. But, while a defective or insufficient bond for appeal does 'not affect the jurisdiction of the circuit court over the case, yet, such bond may be so defective or lacking in proper conditions as . to prevent the circuit court from rendering a judgment against the sureties. This is well illustrated by the case of Distilling Co. v. Kermis, 79 Mo. App. 111, 114, where the court said, “The justice granted the appeal, and so far as the question of the jurisdiction of the circuit court to try the case de novo is involved, it is immaterial whether any appeal bond was given, or whether given out of time; the affidavit for an appeal and the granting of the appeal by the justice conferred jurisdiction on the appellate court, by reason of the provisions of section 6340, Revised Statutes of 1899 (section 7580, Revised Statutes, 1909), which provides, among other things, that such an appeal shall not be dismissed for want of a bond or a sufficient bond, if a good and sufficient bond be given before the determination of a motion to dismiss, and it does not lie in the mouth of the appellant to1 say the court erred for failing to require him to do that which he should have done if his appeal bond was insufficient; nor can he on appeal take advantage of his own default or negligence, after having submitted,himself to the jurisdiction of the court, in a matter over which the court acquired jurisr diction by virtue of his affidavit and the order of the justice granting the appeal.” After disposing of this matter, in this way, the court proceeded to show that, while the court properly proceeded to try that case and render judgment against the defendant, yet, the bond given on the appeal was so defective as to prevent the circuit court, where the case was taken by change of venue, from rendering any judgment against the surety on the bond.

*91The statute above quoted furnishes a remedy in case the appeal is granted by a justice of the peace without requiring a proper appeal bond. Had the plaintiff in this case, by proper motion, called the attention of the circuit court to the defectve bond now in question, that court could, and' doubtless would, have requred the defendant to give a good and sufficient bond at the peril of having his appeal dismissed.

The cases cited by plaintiff in error, State ex rel. Moxley v. Hammond, 92 Mo. App. 231, and which was properly overruled by Drake v. Gorrell, 127 Mo. App. 639 (106 S. W. 1080), and Cowhick v. Jackson, 161 Mo. App. 460 (143 S. W. 558), deals only with the question of the effect which an insufficient or defective appeal bond or affidavit has< on the jurisdiction of the circuit court; but that is not the question now to be considered.

The bond in appeal given in this case and now in controversy is the usual form of an appeal bond but is entitled, F. P. Blair, Collector of the City of Carterville, Plaintiff, v. Garnett Mining Company, Defendant, and recites that “We, the undersigned, Garnett Mining Company, acknowledge ourselves indebted to F. P. Blair, Collector of the City of Carterville in the sum of five hundred dollars, to be void on this condition: Whereas, Garnett Mining Company has appealed from the judgment of Chas. E. Scafe, a Justice of the Peace, in an action between F. P. Blair, Collector of the City of Carterville, Plaintiff, and Garnett Mining Company, Defendant, etc.” It is signed Garnett Mining Company, by W. M. Kavanaugh, Pres., C. C. Play ter and D. N. Friend.

The judgment in the case is entitled, “The State of Missouri at the relation and to the use of F. P. Blair, City Collector within and for the City of Carterville, in Jasper County, Missouri, Plaintiff, v. Garnett Mining Company, Defendants.’? It recites the appearance of plaintiff and the default of the defendants in failing to further appear, and that the petition is taken as con*92fessed, and that the plaifitiff is entitled to recover the amount specified “of and from the defendant and W. M. Kavanaugh, O. 0. Play ter and D. N. Friend, its sureties on the appeal bond herein. ’ ’ It will be readily seen that the judgment does not follow the appeal bond in that the judgment is in favor of The State of Missouri at the relation and to the use of F. P. Blair, city collector, etc., while the bond refers to a case in which F. P. Blair, collector of the city of Carterville, is plaintiff ; and the obligation of the bond is to F. P. Blair, collector of the city of Carterville. It will also be noted that the judgment is against the defendant and W: M. Kavanaugh, C. C. Payter and D. N. Friend, as sureties on the appeal bond; whereas W. M. Kavanaugh is not a surety on said bond but his name appears only as the chief official of the defendant and the one who signed the name of Garnett Mining Company on the bond.

Waiving the question now raised that F. P. Blair, the obligee in the appeal bond, was dead at the time the judgment in this case was rendered as not being raised at the proper time, we think there is a material difference between a bond given to the State of Missouri, at the relation and to the use of a certain official and one given to the individual who is the official as obligee.

■ The doctrine that a surety on a bond is bound only by the strict letter of his bond .has not been departed from to any great extent in this State. In the case of State v. Charles, 207 Mo. 40, 45 (105 S. W. 609), we find the Supreme Court announcing “that the appellate courts of this State, both the Courts of Appeals and the Supreme Court, have indicated in no uncertain terms their unwillingness to extend the obligation of sureties beyond what is clearly contemplated by the terms employed in the conditions of the bond. ’ ’ Many eases are there reviewed showing the applications of the “strictissimi doctrine,” but that case itself furnishes a good example of the rule as applied in this State.

*93While section 7589, Revised Statutes, 1909, provides that where judgment is entered on trial anew in the appellate court, such judgment shall be rendered against the defendant and his sureties- in the recognizance for the appeal, and thus gives a summary remedy against the sureties on the appeal bond, yet, we think that the law is that unless the bond in question is sufficient to sustain an independent action on the same for the violation of its conditions, no judgment can be rendered against the sureties in this summary manner. This is illustrated by the case of Distilling Co. v. Kermis, supra, where the court reversed the summary judgment against the sureties on the appeal bond while permitting the judgment against the defendant to stand.

In State ex rel. v. McElroy, 9 Mo. App. 580, the court held: “Where the bond is to A., and the action is commenced and proceeds in the name of the State at the relation and to the use of A, and the point is properly saved by an objection to the evidence at the trial, a judgment for the plaintiff will be reversed.” This is clearly a holding that the State at the relation of F. P. Blair, collector, could not have maintained a suit on the present bond, where the bond is to F. P. Blair, collector.

In 5 Cyc. 856, it is said, “A judgment in favor of the obligee should' conform in the designation of such person to that in the bond.” In United States ex rel. McDonald v. Shoup, 21 Pac. (Idaho) 656, it is held that where a bond is- payable to “the people of the United States” it will not sustain a judgment in favor of “the people of the United States of the Territory of Idaho.” This is certainly more of an extreme case that the one at hand.

We think that sureties are yet the favorites of the law in this State and that they are bound only by the terms of the bond which they signed. If such be the-law, then this case must be reversed and remanded *94with directions to the circuit court to enter a judgment for plaintiff against the Grarnett Mining Company only. It is so ordered.

Farrington, J., concurs. Robertson, P. J., not sitting.