Wilcox v. Daniels

22 Mo. 493 | Mo. | 1856

Scott, Judge,

delivered the opinion of the court.

The question raised by this record is, whether an ordinary action will lie upon an appeal bond taken in a justice’s court, in a forcible detainer, or whether the appellee is not confined exclusively to the judgment which may be rendered on the appeal in the court in which it may be tried, so that, if he fails to obtain an assessment of the damages he has sustained in that manner, he is remediless.

We are not aware of any principle which excludes the plaintiff from an ordinary action on the appeal bond. It is true he might have resisted the dismissal of the appeal and insisted on his right to have his damages assessed according to the condition of the appeal bond, in the court to which the appeal was taken. But we do not see that his failure to do this should entitle the defendant to the advantage, which he seeks to obtain by his defence to this action. The dismissal contemplated by the 30th and 31st sections of article 1 of the act concerning forcible entries and detainers, is such as is had at the instance of the appellee, and not that which is voluntary. The act of the defendant, in voluntarily dismissing his own appeal, clearly contravened the condition of his bond, that he would prosecute his appeal with effect. We see no difference in principle between this case and that of Cockerill vs. Owen (10 Mo. 287).

With the concurrence of the other judges,

the judgment is reversed, and the cause remanded.