6 Mo. App. 526 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is an original application to this court for a mandamus. The petition states that on March 5, 18,77, the relator obtained in the St. Louis Circuit Court a judgment against Henry B. Berning for the penal sum of $60,000, with an order of execution for the sum of $2,329.22, part-thereof, with costs, etc.; that thereupon said Berning took an appeal to the St. Louis Court of Appeals, giving'a bond which was duly approved by the Circuit Court, and which is copied at length into the petition; .that on May 28, 1878, the Court of Appeals affirmed the judgment of the Circuit Court, and, on June 14th following, issued its mandate accordingly, which was duly filed in said Circuit Court ¿ that on June 4, 1878, said Berning took an appeal from the Court of Appeals to the Supreme Court, upon his application and affidavit only, without giving or tendering any
The defendant’s return upon the alternative writ admits the facts stated in the petition, and alleges that, prior to the taking of the appeal to the Supreme Court, said Berning caused a notice to be served on the relator, to the effect that he would apply to the Court of Appeals for an appeal to the Supreme Court, to be granted upon his affidavit, and upon the same bond which had been approved by the Circuit Court, and which in its terms provided for an appeal to the Supreme Court. Hereupon the relator moves for a peremptory writ upon the face of the return.
The statutory provision for a stay of execution upon appeal granted is as follows : “ Upon the appeal being made, the Circuit Court shall make an order allowing the appeal, and such allowance thereof shall stay the execution in the following cases, and no other: * * * Second, when the appellant, or some responsible person for him, together with two sufficient securities to be approved by the court, shall during the term at which the judgment appealed from was rendered enter into a recognizance to the adverse party, * * * conditioned that the appellant will prosecute his appeal with due diligence to a decision in the Supreme Court, and shall perform such judgment as shall be given by the Supreme Court, or such as the Supreme Court may direct the Circuit Court to give; and if the judgment of such court, or any part thereof, be affirmed, that he will comply with and perform the same so far as it may be affirmed, and will
Under the common law, the writ of error or certiorari operated by its own inherent force to stay execution of the judgment. Our statute abolishes, this rule, and provides that no such-effect shall follow an appeal or writ of error unless certain conditions shall have been first fulfilled. If, then, with reference to the pending appeal from this court" to the- Supreme Court, the bond under consideration fulfils the statutory conditions, the defendant was right in refusing to issue execution upon the relator’s demand. But if those conditions are not fulfilled, a peremptory mandamus must be awarded as prayed for in this proceeding.
, .The defendant argues that although the cumulative conditions set forth in the bond may have no express warrant in the statute, yet the instrument is good as a common-law obligation, and is as binding on the obligors as if framed under statutory direction. But this is begging the question. .The present inquiry has no concern with what the
Neither the Constitution nor any statute has provided in direct terms for a stay of execution pending appeal from this court to the Supreme Court. But the steps whereby the Supreme Court acquires jurisdiction of a cause may be held to belong to the practice in that court, in like manner as the issue and service of summons pertains to the system ■of practice in the Circuit Court. It is therefore considered that, under the constitutional provision which makes all laws relating to practice in the Supreme Court applicable to the Court of Appeals, the statute above quoted applies as well to appeals from this court as to those taken from the Circuit Court. Such, at least, has been the construction uniformly acted upon in this court and in the Supreme Court since the organization of the Court of Appeals. We must therefore recur to the statute in order to ascertain how far, if at all, the bond under consideration fulfils the conditions requisite to a stay of execution pending the present appeal.
The appeal in this instance is from the judgment of the St. Louis Court of Appeals, rendered in the March term, 1878. The statutory condition requires that the recognizance be entered into “ during the term at which the judgment appealed from was rendered.” The bond or recognizance in this case was not entered into during the March term, 1878, of this court, and therefore fails of the stat
It may be objected that this is too literal an interpretation of the statute. But we are not aware of any authority to depart from literal interpretation, when this involves no repugnancy or inconsistency with other provisions of law, or with common sense, or with the manifest purposes of the statute itself. The provisions before us are plain, consistent, and intelligible. There need be no mistake as to the manuer of obeying them. We may consider them practically useless. But the Constitution has not intrusted us with authority to revise the legislative wisdom in this instance, more than in any other. If the law as it stands imposes any unnecessary burden, the Legislature and not the courts must apply the remedy.
There is no need for us to sustain the law in its necessary interpretation upon any ground of utility or convenience. It is enough for all judicial purposes that we find it upon the statute-book, and that its meaning is clear and unequivocal. It might be easy, nevertheless, to assign many reasons in support of its manifest propriety. The sureties on an appeal-bond may be satisfactory to the Circuit Court, and yet not so to the Court of Appeals, for the delay and prolonged litigation involved in an appeal to the Supreme Court. They may, since they were accepted by the Circuit Court, have become insolvent. For this evil, it is true, there may be another remedy. But this furnishes no argument against the manifest propriety of securing to the court whose judgment is appealed from an opportunity to pass upon the guaranty by which the force of that judgment is to be suspended.
A peremptory mandamus will issue, as prayed for by the relator.