Vassilopulos v. Fabianoff

193 Mo. App. 696 | Mo. Ct. App. | 1916

TRIMBLE, J.

The appeal' herein was granted the National Surety Company by one of the judges of this court under section 2043, Revised Statutes 1909. The order granting the appeal was made March 15, 1915, and the appeal was, therefore, returnable to the October term, 1916.

The case in which the appeal was allowed was that of Louis Vassilopulos v. Gust Fabianolf in which a judgment for $1000 was rendered against the latter on December 19, 1914, by the circuit court of Jackson county, Missouri. It seems that, as originally instituted, the suit was brought July 2, 1914, by Louis Vassilopulos against John J. Grier and Gust Fabianolf in which the petition alleged a contract whereby defendants agreed, in consideration of $427 paid to them by plaintiff, to furnish employment for- eighty-six men-on the tracks of the Chicago, Rock Island and Pacific Railway Company, at Davenport, Iowa; that plaintiff kept eighty men waiting in Kansas City for defendants to furnish with said employment; but that said defendants violated said contract and failed to furnish said employment; that plaintiff was damaged not only in the loss of the money he paid but also by the loss of the services of the eighty men and the cost of their board and lodging since making the agreement, aggregating in all the sum of $5000 for which judgment was prayed.

Summons was issued and served upon both defendants. Grier appeared and filed answer but Fabianolf never appeared. On December 2, 1914, the canse was, by agreement, dismissed as to G-rier.

On December 14,1914, the plaintiff filed an amended petition against Fabianoff only. In this amended petition it was alleged that defendant conducted an employment agency in Kansas City, Missouri, and was by the city duly licensed so to do; that on or about February 25, 1914, defendant, with intent to deceive and defraud plaintiff, represented to the latter that he had positions for eighty-six men- as track laborers for the Chicago, Bock Island and Pacific Bailway Company at Davenport, Iowa, which he was authorized to fill, and that plaintiff by paying $427 could select said men to fill such positions; that said representations were false and known by defendant to be false at the time they were made; that plaintiff relied upon said representations and was thereby induced to pay defendant $427 and to keep said men on expense and in idleness for four weeks waiting for defendant to ship them to. Davenport; that by reason of the premises plaintiff was damaged in the sum of $1000 for which-he asks judgment.

Buie 6 of the Jackson circuit court required that, whenever an amendment of a petition was made before trial, the adverse party must be served with a copy of such amended pleading, as prescribed by law for service' of notice, and unless otherwise ordered; any appropriate pleading thereto should be filed within three days after such service. No service of such amended petition was had upon Fabianoff. But on December 19, 1914, as hereinbefore' stated, judgment by default was entered against 'him in the sum of $1000.

On the 12th day of January, 1915, Vassilopulos began a suit in the circuit court of Jackson county, Missouri, on the bond of Fabianoff, given by Aim, in accordance' with the ordinances of Kansas City to obtain a license to conduct an employment agency in said city. Said bond was to tbe said city in tbe sum of $1000 and conditioned for tbe full compliance on tbe part of said Fabianoif with tbe ordinances of tbe city governing said business and also conditioned that said Fabianoff would pay all judgments rendered against bim on account of any wilful misrepresentations or for wilfully deceiving any person transacting business witb bim, or for being guilty of any deception whatever toward any person wbo might employ any person to work for any other person. Said suit on said bond was entitled “Kansas City at'the relation and to tbe use of Louis Vassilopulos. Plaintiff v. Gust Fabianoff and National Surety Company, defendants.” Tbe petition therein set out tbe section of tbe ordinance under which tbe bond was given. It also alleges tbe execution of said bond by tbe National Surety Company as surety thereon, a verified ‘copy of which was attached; it further alleged tbe bringing of tbe suit against Fabianoff upon tbe grounds herein-before stated and tbe recovering of tbe judgment of $1000 against bim; that tbe defendants were guilty of a breach of said bond in that part of said judgment bad been paid; wherefore, judgment for $1000 was asked against both defendants on said bond. Said suit was returnable to tbe March, 1915, term of said court.

Thereupon, tbe National Surety Company applied to one of tbe judges of this court for an appeal under-section 2043 as above stated. Tbe application for tbe appeal sets out tbe foregoing facts together witb a copy of tbe petition in tbe suit against appellant herein on the bond, together witb a copy of Rule 6 of tbe Jackson Circuit Court requiring a notice of the amended petition, in tbe case against Fabianoff, to be served upon bim, which tbe plaintiff failed to do.

The application for appeal farther sets ont that the amended petition in the case against Fabianoff wholly changed the canse of action alleged against him in the original petition; that no notice of such change was ever served upon said Fabianoff as required by said rule; and that he had no notice thereof; that, in said suit on the bond, said plaintiff was attempting to proceed on said judgment against Fabianoff as conclusive of the rights of the parties; and as binding and conclusive upon the rights of the National Surety Company as surety on said bond.

It is further alleged in the application for an order granting an appeal that certain errors were committed which rendered the said judgment a nullity; that from an inspection of the record error was committed against the rights of Fabianoff and the National Surety Company which materially affects the merits of said action.

It thus appears that the National Surety Company, appellant herein, was not a party to the suit in which the judgment was rendered on account of which the Surety Company claims to be aggrieved and from which it appeals. Section 2038, Revised Statutes 1909, says: “Any party to a suit aggrieved by any judgment” may take an appeal. Plaintiff Vassilopulos, therefore, moves to dismiss the appeal because the National Surety Company is not a party to the suit aggrieved by the judgment.

Prior to the amendment of section 2038 in 1891, 'it read: “Every person aggrieved by any final judgment or decision of any circuit court,” etc., could take an appeal. But the amendment of 1891 changed the section to read “any party to a suit aggrieved, etc.”

Under the section as it formerly stood, giving to “every person aggrieved” a right to appeal, the appellant herein clearly had such right. [Nolan v. Johns, 108 Mo. 431.] And it might seem that the change to “any party to a suit” would take away such right. But in Thomas v. Elliott, 215 Mo. 598, l. c. 603, the Supreme Court say they do not construe the change in the statute as taking away from anyone the right of appeal which he had under the statute as it for-. merly stood even though the one says “every person” and the other says “any party to a suit.” It is true that on page 604 of the same case the court say: “But as we have already seen, the right of appeal given by that act was given only to a party to the suit. And when we consider that the dominant purpose in the mind of the lawmaker was to confer a right of appeal that would necessarily suspend the progress of the cause in the trial court and delay the final judgment, we can well see why it should he limited to a party to the suit then pending and undetermined.” But these remarks were made in view of the fact that the appellant in that case was appealing from an order setting aside a sale in partition. He was the purchaser at the sale and was not a party to the suit. The statute, at the same time it was amended as above, was also amended to allow an appeal “from any interlocutory judgments in actions of partition.” The court, by the remarks last above quoted, meant merely to say that, as to this new ground of appeal given by the statute, the only one who could avail himself of it and thereby suspend the proceeding before a final judgment was reached, must be a party to the suit. ■ But, as to anyone appealing from a final judgment, the amended statute left the same right of appeal that was given under the old statute.

This view is fortified by the remarks of the Supreme Court in State ex rel. v. Shelton, 238 Mo. 281, l. c. 297, where in speaking of this change in the statute, the court say: “It will thus be seen that to meet the ends of justice we have given to the present' act the same wide range of meaning imported by the language of the former act. Hence decisions construing the former act are in point. ”

As the bond on which appellant is surety binds appellant to “pay all judgments” rendered against the principal for violation of duty as manager of an employment agency,- and the judgment complained of is one of'them, it would seem that the Surety Company is aggrieved by the judgment, and, being aggrieved, has the right of appeal under our statute construed as it is by the Supreme Court. Construed thus, the statute allows an appeal to every person, aggrieved, and, therefore, appellant comes within its terms even though the bond on which it is surety was not given in a judicial proceeding. In 2 Cyc. 638, it is said: “The sureties-on an official bond become parties to the record by a judgment against the principal on the bond and may appeal from such judgment.” But whether or not a bond, such as the one now in question, makes the surety a party to the record by operation, of law, still under our statute authorizing - appeals'the' surety may appeal even if it be bound only according to the terms of its contract. That contract provides that the surety will pay the judgment if the principal does not.’ Hence the surety is aggrieved and has the right to appeal.

! Section -2043 authorizing an appeal says the same shall not be granted “unless it appear from ah inspection of the' copy of the record that error was com-mitted” etc. It is urged that no error appears. Of' course, :for hs to decide that finally now, would be to ic'onclhde the matter, or platform ourselves upon that-question, before the hearing of the appeal. • We do not do this,' -biit merely hold that' apparently there is enough showing, of error to- warrant an appeal being allowed so that it may be heard.

i ' The last ground of the motion to dismiss is that ho notice in writing of • the .appeal was given to' the respondent twenty days before the commencement of the-term of. the- appellate court to which such appeal is to be sent, as provided by section 2046, Revised! Statutes 1909. As before stated, tbe appeal was returnable to tbe October term, 1915, of tbis court.

Tbe suit against tbe Surety Company on tbe bond was brought January 12, 1915. Until then, or at least until service was obtained, tbe Surety Company presumably was without notice of tbe judgment. It applied to this court for an order- granting an appeal on March 15, 1915. Tbe respondent, Louis Vassilopulos, on tbe date of tbe rendition of tbe judgment in bis favor, December 19, 1914, testified in tbe case that be lived at “305 Kansas avenue.” It appears, however, from an affidavit attached to tbe motion to dismiss, that Vassilopulos resided át 305 Kansas avenue, Kansas City, Kansas, “continuously for about four years prior to December, 1915, when be left for Greece. Tbe appellant' has filed an affidavit stating that ever since tbe granting of said appeal,‘appellant has made diligent effort and search to find tbe respondent in order to serve notice on him but has been unable to do so. The appellant bad from March 15, 1915, to twenty days before tbe fitst Monday in October, 1915, to serve said notice. During all that time tbe residence of respondent was disclosed in tbe evidence taken at tbe trial, and be did not leave for Greece till December, 1915.

Tbe right of appeal being purely statutory, a person to avail himself of any such right must comply with tbe requirements of tbe statute granting that right. [Mahopaulos v. Chicago, etc. R. Co., 256 Mo. 249; State ex rel. v. Broaddus, 216 Mo. 342.] Tbe affidavit saying it was impossible to find Vassilopulos in order to serve notice is vague and unsatisfactory and does not show tbe facts as to tbe diligence claimed, even if such showing could’ be allowed to avail. Tbe appeal, therefore, should be dismissed for failure -to comply with section 2046. Consequently, tbe motion to dismiss must be, and is, sustained.

All concur.