EEYNOLDS, P. J.
(after stating the facts). — ■ Prom the instructions given by the court, it will be noted that in the first place the court held, in effect, that the reception of dues and assessments from Baker by the local camp, the fact of his alleged conviction not being communicated to the superior authorities of the Order, was no estoppel against the Order setting up forfeiture. As plaintiffs have not appealed from this declaration of law, although their counsel, as well as counsel for defendant, have argued this proposition with great earnestness and with much learning, it is not before us, and in the view we take of the case, it is not necessary for us to consider it. We express no opinion whatever, therefore, on the effect of the action of the local camp in accepting the dues, remarking however, that it appears by the uncontroverted evidence in the case, that the dues of James Baker and all assessments levied on him during his lifetime were paid in due time and to the proper officer, so that, provided the result of the trial under the charge of a felony was not a conviction within the meaning of the certificate and the by-laws of the defendant, Baker was in no way in default and was in good standing in the Order down to the day of his death. The point here in decision, therefore, is whether, within the meaning [630]*630of the by-laws of the organization and of the certificate of membership and of the law, James Baker was convicted of a felony. If so, his membership was forfeited, assuming for this case oniy, but not deciding, that the local camp had no power to waive forfeiture and did not do so by acceptance of dues and assessments. We have been cited to a number of cases on this question of the effect of the verdict and sentence, but on careful consideration of them, hold that they do not meet this case. The matter presents itself to us in a very simple light. That Baker was tried for a felony, a verdict returned against him and sentence of imprisonment imposed by the circuit court is beyond question. It is also beyond dispute that he appealed from that to the Supreme Court. Section 2696, Revised Statutes 1899, provides for the allowance of an appeal in all cases of final judgment rendered upon an indictment. Section 2698, provides that no such appeal or writ of error shall stay or delay the execution of the judgment or sentence, except in capital cases, unless the court in which the judgment is rendered shall be of opinion that there is probable cause for such appeal or writ of error or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment. While we do not find in the record in the case any order of the court, on granting the appeal, suspending the execution of the judgment, and while our own experience shows us that in practice such order is rarely entered, it commonly being assumed that the granting of the appeal and approval of the bond or taking recognizance, meets that requirement of the law, and as it is very evident that an appeal was granted and supersedeas bond approved, and that Baker was let to bail, the effect was to suspend enforcement of sentence and judgment. When the appeal was perfected and a supersedeas bond [631]*631tendered and approved, the canse passed out of the jurisdiction of the circuit court and was pending, as on a trial at law, before the Supreme Court, as completely as if there instituted. Pending action on the case by the Supreme Court, Baker died. His death abated the case, not simply the appeal, but abated the prosecution, so that it stood, as far as he was concerned, as if no prosecution had ever been entered against him. [State v. Woods, 56 Mo. App. 55; Town of Carrollton v. Rhomberg, 78 Mo. 547.] In this latter case, at page 549, Mr. Commissioner Martin says: “It is unnecessary to consider whether this is a criminal or a civil proceeding, for under neither view of it could the ease be proceeded with. If it is a criminal proceeding it abates as a matter of course,” citing State v. Perrine, 56 Mo. 602. In this latter case, the Supreme Court, speaking through Judge Wagner, referring to the case under consideration and to the fact that the defendant had been convicted and appealed to the Supreme Court, says: “Pending the appeal he died, and the case has been revived in the name of his administrator, who is now made a party to the record. Wte know of no law continuing a prosecution against a dead man. The statute provides, that when an appeal or writ of error shall be prosecuted from the judgment, in a case of misdemeanor, the recognizance shall be conditioned, that the defendant shall appear in the court in which the judgment was rendered, at such time and place as the Supreme Court shall direct, and that he will render himself in execution, and obey every order and judgment which shall be made in the premises. When the party is dead, it is impossible for him to comply with the stipulations of the bond, or obey the mandate of the court. The case was thereby necessarily abated, and it must be dismissed.” It is true that these cases arose in prosecutions for misdemeanor and in one case against a surety on a bond, but the [632]*632proposition that death abated the cause is clearly announced in each of them, and we know of no difference in application of the principles between felonies and misdemeanors. The conditions of the bond or recognizance are practically identical in each class. It is not the appeal Avhich abates, but the prosecution itself, the right of action itself, the liability to prosecution for the alleged crime. Abating as it does on the death of the defendant, does not simply mean a discontinuance; it means an. extinguishment of the very right of action itself. The right of prosecution is as effectually wiped out as if it had never existed.
In State v. Brown, 1 Mo. App. 449, this court, l. c. 450, treating of the effect of the death of one. of the parties to the cause, pending an appeal, says: “When either ceases to exist and is incapable of being represented by any successor, the Tase’ is at an end.”
The very term “abatement” carries this meaning. “Abatement,” says Am. and Eng. Ency., vol. 1, p. 41 (2 Ed.), “is a generic term derived from the French (ibattre, and signifies the quashing, beating down, removing or destroying of a thing.”
Applying the principle in this case and Avithout regard to tbe fact that the Supreme Court reversed and remanded the case against Baker, he then being dead, wé hold that the fact of his death having been established pending the appeal in the Supreme Court, he Avas not a “convict.” The case against him ended, ended as completely and effectually as if never instituted. Construing the language in the certificate of membership and in the by-laws of the defendant organization, we hold that the term, “shall be convicted of a crime or felony,” as there used, means lawfully convicted, convicted by a final judgment that stands and disposes of the case against the defendant beyond all power of reversal or change or annullment by any authority. The death of this man, then having the lawful-’ ness of the conviction of the lower court before the [633]*633Supreme Court, that very question of the lawfulness of his conviction being open and undetermined, freed him from further prosecution and removed from him the judgment of the lower court. The defendant had no right, under its issued certificate or its by-laws to claim a forfeiture, save under a lawful, a final and enforceable conviction.
Free access — add to your briefcase to read the full text and ask questions with AI
EEYNOLDS, P. J.
(after stating the facts). — ■ Prom the instructions given by the court, it will be noted that in the first place the court held, in effect, that the reception of dues and assessments from Baker by the local camp, the fact of his alleged conviction not being communicated to the superior authorities of the Order, was no estoppel against the Order setting up forfeiture. As plaintiffs have not appealed from this declaration of law, although their counsel, as well as counsel for defendant, have argued this proposition with great earnestness and with much learning, it is not before us, and in the view we take of the case, it is not necessary for us to consider it. We express no opinion whatever, therefore, on the effect of the action of the local camp in accepting the dues, remarking however, that it appears by the uncontroverted evidence in the case, that the dues of James Baker and all assessments levied on him during his lifetime were paid in due time and to the proper officer, so that, provided the result of the trial under the charge of a felony was not a conviction within the meaning of the certificate and the by-laws of the defendant, Baker was in no way in default and was in good standing in the Order down to the day of his death. The point here in decision, therefore, is whether, within the meaning [630]*630of the by-laws of the organization and of the certificate of membership and of the law, James Baker was convicted of a felony. If so, his membership was forfeited, assuming for this case oniy, but not deciding, that the local camp had no power to waive forfeiture and did not do so by acceptance of dues and assessments. We have been cited to a number of cases on this question of the effect of the verdict and sentence, but on careful consideration of them, hold that they do not meet this case. The matter presents itself to us in a very simple light. That Baker was tried for a felony, a verdict returned against him and sentence of imprisonment imposed by the circuit court is beyond question. It is also beyond dispute that he appealed from that to the Supreme Court. Section 2696, Revised Statutes 1899, provides for the allowance of an appeal in all cases of final judgment rendered upon an indictment. Section 2698, provides that no such appeal or writ of error shall stay or delay the execution of the judgment or sentence, except in capital cases, unless the court in which the judgment is rendered shall be of opinion that there is probable cause for such appeal or writ of error or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment. While we do not find in the record in the case any order of the court, on granting the appeal, suspending the execution of the judgment, and while our own experience shows us that in practice such order is rarely entered, it commonly being assumed that the granting of the appeal and approval of the bond or taking recognizance, meets that requirement of the law, and as it is very evident that an appeal was granted and supersedeas bond approved, and that Baker was let to bail, the effect was to suspend enforcement of sentence and judgment. When the appeal was perfected and a supersedeas bond [631]*631tendered and approved, the canse passed out of the jurisdiction of the circuit court and was pending, as on a trial at law, before the Supreme Court, as completely as if there instituted. Pending action on the case by the Supreme Court, Baker died. His death abated the case, not simply the appeal, but abated the prosecution, so that it stood, as far as he was concerned, as if no prosecution had ever been entered against him. [State v. Woods, 56 Mo. App. 55; Town of Carrollton v. Rhomberg, 78 Mo. 547.] In this latter case, at page 549, Mr. Commissioner Martin says: “It is unnecessary to consider whether this is a criminal or a civil proceeding, for under neither view of it could the ease be proceeded with. If it is a criminal proceeding it abates as a matter of course,” citing State v. Perrine, 56 Mo. 602. In this latter case, the Supreme Court, speaking through Judge Wagner, referring to the case under consideration and to the fact that the defendant had been convicted and appealed to the Supreme Court, says: “Pending the appeal he died, and the case has been revived in the name of his administrator, who is now made a party to the record. Wte know of no law continuing a prosecution against a dead man. The statute provides, that when an appeal or writ of error shall be prosecuted from the judgment, in a case of misdemeanor, the recognizance shall be conditioned, that the defendant shall appear in the court in which the judgment was rendered, at such time and place as the Supreme Court shall direct, and that he will render himself in execution, and obey every order and judgment which shall be made in the premises. When the party is dead, it is impossible for him to comply with the stipulations of the bond, or obey the mandate of the court. The case was thereby necessarily abated, and it must be dismissed.” It is true that these cases arose in prosecutions for misdemeanor and in one case against a surety on a bond, but the [632]*632proposition that death abated the cause is clearly announced in each of them, and we know of no difference in application of the principles between felonies and misdemeanors. The conditions of the bond or recognizance are practically identical in each class. It is not the appeal Avhich abates, but the prosecution itself, the right of action itself, the liability to prosecution for the alleged crime. Abating as it does on the death of the defendant, does not simply mean a discontinuance; it means an. extinguishment of the very right of action itself. The right of prosecution is as effectually wiped out as if it had never existed.
In State v. Brown, 1 Mo. App. 449, this court, l. c. 450, treating of the effect of the death of one. of the parties to the cause, pending an appeal, says: “When either ceases to exist and is incapable of being represented by any successor, the Tase’ is at an end.”
The very term “abatement” carries this meaning. “Abatement,” says Am. and Eng. Ency., vol. 1, p. 41 (2 Ed.), “is a generic term derived from the French (ibattre, and signifies the quashing, beating down, removing or destroying of a thing.”
Applying the principle in this case and Avithout regard to tbe fact that the Supreme Court reversed and remanded the case against Baker, he then being dead, wé hold that the fact of his death having been established pending the appeal in the Supreme Court, he Avas not a “convict.” The case against him ended, ended as completely and effectually as if never instituted. Construing the language in the certificate of membership and in the by-laws of the defendant organization, we hold that the term, “shall be convicted of a crime or felony,” as there used, means lawfully convicted, convicted by a final judgment that stands and disposes of the case against the defendant beyond all power of reversal or change or annullment by any authority. The death of this man, then having the lawful-’ ness of the conviction of the lower court before the [633]*633Supreme Court, that very question of the lawfulness of his conviction being open and undetermined, freed him from further prosecution and removed from him the judgment of the lower court. The defendant had no right, under its issued certificate or its by-laws to claim a forfeiture, save under a lawful, a final and enforceable conviction. Until the Supreme Court passed on the lawfulness of the verdict and sentence there was no enforceable conviction, Baker could not be committed to prison, the giving and approval of the bond effectually preventing imprisonment in the penitentiary or elsewhere.
Defendant here claims a forfeiture. Forfeitures are not favored by the courts; they will not be enforced on narrow and doubtful constructions, and no court will, unless controlled by the contract the parties have themselves made, enforce them; least of all will it allow one of the parties to a contract, in the absence of an express covenant in the contract itself to that effect, to construe a forfeiture into a contract and declare and enforce it. Organizations of like class of this defendant have been very kindly dealt with by our laws; very liberal provisions are made for them. Very many of our plain everyday people look to them for protection. These organizations should be very slow in insisting on rigid interpretations of their certificates and by-laws — more rigid than any so-called old-line companies are permitted to exact, in resisting and defeating the claims of those by whose small contributions the organization is kept alive. In this case counsel for appellant remind us that its organization is founded on social features — that it is to bring neighbors together in social relations and that it is odious that the society of a convict should be forced upon his neighbors. That is an unfortunate argument for defendant. The evidence in the case shows that this unfortunate man’s own neighbors received him and kept him in fellowship after the court and jury had found [634]*634against him. These were the neighbors and friends he associated with and they do not seem to have shut the door on him in the days of his troubles.
The judgment of the circuit court is for the right party and is affirmed.
Nortoni, J., concurs; Goode, J., not sitting.