Gary Realty Co. v. Swinney

269 S.W. 961, 306 Mo. 592

• Court: Supreme Court of Missouri
• Decided: February 17, 1925
• Status: Published

Opinions

^* NOTE: Decided December 30, 1924; motion for rehearing filed; motion overruled February 17, 1925. This is a suit on an appeal bond. On November 1, 1915, the plaintiff instituted an action against E.P. Kelly, Paul LeMarquand, A. LeMarquand, W. LeDoux, F.G. Bonfils, Harry Tammen and Empress Theatre Company, a corporation, under our forcible entry and unlawful detainer statutes, for the possession of certain premises situated in Kansas City. The action was brought before one of the justices of the peace of Jackson County, but before the day of the trial the proceedings were removed to the circuit court by certiorari. Upon a trial of the cause in the circuit court plaintiff obtained judgment, the record entry of which is as follows:

"Now on this 18th day of March, 1916, come all the parties hereto, complainant (or plaintiff) appearing by its attorneys, Hadley, Cooper, Neel Wright, and defendants appearing by their attorney, Frank M. Lowe, and plaintiff dismisses this action as to defendants F.G. Bonfils, Harry H. Tammen and Empress Theatre Company, a corporation, and the court having duly heard, seen and considered the evidence (said cause having been tried before and submitted to the court sitting without a jury, at the January, 1916, term of this court on Wednesday the 8th day of March, 1916, the right of trial by jury being waived by all parties hereto, and complainant appearing in person and defendants by their said attorney and when, at the conclusion of the evidence and arguments of counsel, the court took this cause under advisement) renders its decision herein and finds all the issues in favor of complainant and against defendants. And the court further finds that the defendants are guilty in manner and form as charged in the . . . complaint; that complainant is entitled to have restitution of the premises described in said complaint, to-wit: [Here follows a description of the premises]; that the complainant has sustained damages, by reason of the premises, to the amount of $2000, and that the value of the monthly rents and profits of the said tenements is six hundred and fifty dollars.

"Wherefore, it is hereby ordered, considered and adjudged that the complainant, Gary Realty Company, have restitution of the said premises found by the court to have been unlawfully detained and recover of the defendants the sum of four thousand dollars, being double the sum assessed and found by the court for complainant's damages; and that complainant also have and recover from defendants at the rate of thirteen hundred dollars, double the said sum found by the court, per month, for rents and profits, from this 18th day of March, 1916, until restitution of the said premises to plaintiff be made, together with the costs of this suit.

"Wherefore, let execution issue."

In due course the defendants, Kelly, A. LeMarquand and LeDoux applied for, and were allowed, an appeal to this court. In connection therewith they tendered an appeal bond, which was approved and filed in the cause, and which operated as a stay of execution pending the appeal. And that bond is the identical bond here in suit, according to plaintiff's contention. The bond declared on is as follows (except its condition which will be set out hereafter):

"In the Circuit Court of Jackson County, Missouri, at Kansas City, March Term, 1916. Gary Realty Company, a corporation, Plaintiff, vs. E.P. Kelley, A. LeMarquand and W. LeDoux, Defendants, No. 95041.

"Appeal Bond to the Supreme Court of Missouri.

"Know all men by these presents, that we, E.P. Kelley, A. LeMarquand and W. LeDoux, as principals, and F.G. Bonfils and E.F. Swinney, as sureties, are held and firmly bound unto the Gary Realty Company, a corporation, in the sum of twenty-five thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents, signed by us and dated this 27th day of March, 1916. . . .

"E.P. KELLEY "A. LEMARQUAND "W. LEDOUX "E.F. SWINNEY"

It was endorsed on back as follows: "No. 95041. Bond for appeal to the Supreme Court $25,000. Filed Mar. 28, 1916. James B. Shoemaker, Clerk, by J.F. Flynn, D.C."

Such proceedings were had in this court on the appeal that the judgment of the circuit court was affirmed. [Realty Company v. Kelly, 278 Mo. 450.] Thereafter, defendants having failed to pay the sum adjudged against them as and for damages and rents and profits and for costs, aggregating $32,379.91, plaintiff instituted this suit on the bond above set forth for the penalty therein.

As it is insisted that the judgment, the execution of which was stayed by the appeal bond, was a nullity on the ground that both the justice of the peace court in which the proceeding was originated and the circuit court in which the judgment was rendered were without jurisdiction, a detailed statement of the proceedings had before the justice, and in connection with the removal to the circuit court by certiorari, is advisable.

On November 1, 1915, plaintiff commenced the suit against all the defendants first named by filing in the justice court a complaint which is not criticised either as to form or substance. The justice issued a summons requiring the constable to summon all of the defendants to appear November 9, 1915, the summons being issued on the day suit was brought, to-wit, November 1, 1915. On the next day, November 2, 1915, the constable returned the summons as personally served on the defendants, Harry H. Tammen, Paul LeMarquand and A. LeMarquand, but that he had made diligent search for and failed to find defendants, E.P. Kelly, W. LeDoux, F.G. Bonfils and Empress Theatre Company; and at ten A.M. of November 4, 1915, plaintiff made application for an order of publication against them, and an order of publication was issued, and published for six days in a designated paper, commanding them to appear on November 11, 1915.

On November 3, 1915, A. LeMarquand and LeDoux made application to remove the cause, by certiorari, from the justice court to the circuit court, the application stating that the two defendants were "in the actual possession of the property." The affidavit accompanying the application was made by A. LeMarquand, and stated, among other things, that he and LeDoux were in possession of the property. The bond filed with the application was made by said LeMarquand and LeDoux as principals, and was conditioned that they would pay all rents, profits, damages and costs adjudged against them and otherwise abide the judgment. This bond was signed by H.H. Tammen, presumably as surety.

The writ of certiorari was signed on the 3rd day of November, 1915, directed to the justice to stop all further proceedings and certify the case "within ten days after the service of this writ." It was served on the justice on November 4, 1915, but not until after the justice had issued the order of publication herein above referred to, and on the return day of the summons, to-wit, November 9, 1915, the justice continued the case until November 11, 1915, "for completion of service by publication aforesaid."

On November 11, 1915, after filing proof of publication of the order of publication, the justice found that "service has been made as required by law upon all defendants and that the court has jurisdiction of the said cause and of all parties thereto, including the defendants, E.P. Kelly, Paul LeMarquand, A. LeMarquand, W. LeDoux, F.G. Bonfils, Harry H. Tammen and Empress Theatre Company, a corporation;" and then the transcript was accordingly certified to the circuit court. In that court, LeDoux, Kelly, A. LeMarquand, F.G. Bonfils and H.H. Tammen appeared, filed answer, and stipulated with plaintiff to waive a jury.

The petition in this case is conventional. The following abridgment of the answer will disclose the defenses pleaded:

(1) Defendant, answering plaintiff's petition, admits that he signed the pretended bond sued on, but denies each and every other allegation in plaintiff's petition contained; (2) that plaintiff never obtained any judgment in the Circuit Court of Jackson County, Missouri, on the 18th day of March, 1916, against E.P. Kelly, A. LeMarquand, W. LeDoux and Paul LeMarquand, in an action of unlawful detainer, being cause No. 95041, in said circuit court, and therefore plaintiff has no cause of action against this defendant upon any account thereof; (3) that when defendant signed the pretended bond, he signed it with the expressed understanding that said paper would not be delivered to the court and filed in said cause until and after it had been signed and executed by F.G. Bonfils, the other surety named in said paper, and that said paper was left with the principal, E.P. Kelly, who was to have said paper signed by the said F.G. Bonfils and in case the said F.G. Bonfils did not sign said pretended bond, then it was not to be filed at all; that said pretended bond on its face gives notice that it is not complete, was never executed, and was not ready to be filed as a bond; (4) that the pretended bond sued on herein was given for the purpose of removing from the circuit court to the Supreme Court, an unlawful detainer action, which under the law could only be done by the appellant filing a bond conforming to the provisions of the unlawful detainer code, which provisions are found in Sections 3049 and 3066, Revised Statutes 1919, which are the same provisions governing appeals in unlawful detainer actions as set out in Revised Statutes of 1909. Under the law no appeal operated as a stay of execution and no supersedeas could be granted the party in possession unless the provisions of the above mandatory code were complied with. The pretended bond here in no way meets the requirements of said law and therefore there was no consideration for the signing of the same as under the law the appellant could have been dispossessed at any time after judgment, if said judgment had been a valid or binding judgment; and (5) that the case of Gary Realty Company v. E.P. Kelly et al. was never removed from the justice of the peace to the Circuit Court of Jackson County, Missouri, and therefore said pretended judgment of the circuit court in said case is void: (a) the circuit clerk undertook to remove said cause to that court by issuing its writ of certiorari before five of the defendants had ever been served with either summons or publication, and that such writ was wholly void and under the law which provides that unless the cause is so removed, the justice shall proceed to hear the case regardless of the issuance of said writ; (b) under the law the defendants seeking to remove by certiorari any cause from the justice to the circuit court, must file application, affidavit and bond, and defendant alleges the facts to be that this was not done.

The cause was tried to the court, a jury being waived. No declarations of law were asked or given. The court found the issues for plaintiff and assessed its damages at the sum of $32,829.91. Judgment was rendered for $25,000, the full penalty of the bond. From such judgment defendant appeals. Certain pertinent matters of evidence not covered by the foregoing statement will be noted in the course of the opinion.

Appellant's contentions as disclosed by his assignments of error, argument and brief may be reduced to these: (1) The bond in suit is not the appeal bond that was filed by appellants in Gary Realty Co. v. Kelly et al., or, if so, it was never delivered, so far as appellant here is concerned; (2) the bond declared on, even if executed as alleged, does not conform to mandatory requirements of the Forcible Entry and Unlawful Detainer Statute, consequently it is void; and (3) the judgment with respect to which it is alleged that the bond operated as asupersedeas was void because rendered by a court without jurisdiction. Of these in order.

I. 1. Appellant's insistence that the instrument sued on is not the appeal bond that was given and approved in Gary Realty Co. v. Kelly et al., is based on the following record entry in that case, under date, March 28, 1916: "Now defendantsBond file appeal bond herein in the sum of twenty-fiveIdentified. thousand dollars with F.G. Bonfils and E.F. Swinney as sureties thereon, which said bond is by the court approved." The bond in suit recited that Bonfils and Swinney are sureties, but it also shows that it is not in fact signed by Bonfils. However, the endorsement of the clerk on the back thereof identifies it as a bond for appeal to the Supreme Court in the case of Gary Realty Co. v. Kelly et al. (No. 95041), filed March 28, 1916. And the record does not show the filing of more than one appeal bond in that case. Appellant admitted that he signed the one in controversy and does not pretend that he ever signed any other of similar import. There can be no question but that it is the identical bond given by appellants in the case just referred to for the purpose of staying execution of the judgment therein pending an appeal to this court.

2. Evidence on the part of defendant tended to show that the bond was taken to appellant's bank for his signature, by one Lavand, acting for Kelly, one of the principals. Lavand testified that he told appellant that Bonfils would sign theSigned bond, and that appellant after signing it, said, "IUpon will sign anything that Mr. Bonfils will sign, but beCondition. sure and don't turn that bond in . . . unless Mr. Bonfils signs it." When on the witness stand appellant was unable to recall having made any such statement to Lavand; he did say that when he signed the bond he understood that his signature was requested for the accommodation of Bonfils, who would also sign it. He further stated, in effect, that he signed the bond, not because of the assurance that Bonfils would also sign it, but because he believed that Bonfils, for whose benefit he signed, would guarantee him against loss, and that Bonfils subsequently fully satisfied him in that respect. The trial court evidently found that when appellant signed the bond and handed it back to Lavand he did not attach any conditions relative to its delivery. In view of Mr. Swinney's own testimony the court could not have reasonably found otherwise.

II. We next consider appellant's contention with reference to the sufficiency of the instrument in suit as a statutory bond. Section 3066, Revised Statutes 1919, provides: "No appeal to the appellate or supreme courts shall operate as a stay of execution, nor shall any supersedeas be awarded to the party inSufficient possession, unless the condition of the recognizanceBond. contain the substance of the condition prescribed by this article in cases of appeals by a defendant, and the penalty and security be sufficient to secure the performance thereof." The condition prescribed in cases of appeals by a defendant is found in Section 3046; it is as follows: "that the appellant shall prosecute his appeal with effect and without delay; that he will not commit, or suffer to be committed, any waste or damage on the premises whereof restitution is adjudged, and that he will pay all damages, rents and profits and costs that may be adjudged against him, and otherwise abide the final judgment in the cause." From these provisions it appears that, aside from "the penalty and security," the only statutory requisite of an appeal bond to make it effective as a stay of execution is that its condition contain the substance of the condition just quoted. The condition of the bond in question is as follows:

"The condition of the above obligation is such that, whereas, E.P. Kelley, A. LeMarquand and W. LeDoux have appealed from the judgment rendered against them and in favor of Gary Realty Company, a corporation, in the Circuit Court of Jackson County, State of Missouri, for the sum of four thousand ($4000) dollars, damages and rent at the rate of one thousand three hundred ($1300) dollars per month, from March 18, 1916, together with costs. Now, if the said E.P. Kelley, A. LeMarquand and W. LeDoux, appellants, shall prosecute their appeal with due diligence to a decision in the Supreme Court of the State of Missouri, and shall perform such judgment as shall be given by the said Supreme Court; or, such as the said Supreme Court may direct the said Circuit Court to give, and if the judgment of the said Circuit Court or any part thereof be affirmed, and said appellants shall comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded and adjudged against the said E.P. Kelley, A. LeMarquand and W. LeDoux, by the said Supreme Court, then this obligation to be void."

We do not consider an analysis of this language necessary in order to point out its content; it is clear that it embraces all the conditions prescribed by Section 3046, except the one relating to waste. The condition, "that he (appellant) will not commit, or suffer to be committed, any waste or damage on the premises whereof restitution is adjudged," is wholly omitted. Is the bond for that reason void? The commission of waste is not assigned as a breach. There is no question of waste in the case. Appellant's point, however, is this: Under the express provision of the statute an appeal does not operate as a stay of execution unless a recognizance be given containing certain enumerated conditions; as the bond in this case does not contain all of those conditions it did not stay execution; it served no purpose therefore, was without consideration, and consequently void. It may be that had the bond been put to the test by the issuance of an execution pending the appeal the construction now contended for by appellant would have obtained. But the evidence shows beyond question that the bond did in fact serve the statutory purpose. It was treated by all parties as effecting a supersedeas; execution was not ordered until after the affirmance of the judgment on the appeal.

The appeal, in connection with which the bond was given, was allowed March 27, 1916; the cause was not docketed for hearing in this court until the April term, 1919, and in the meantime rents, under the judgment, were piling up at the rate of $1300 a month. Pending the appeal respondents in that cause filed a motion in the appellate court asking that the appellants be required to give an additional supersedeas bond. The motion was sustained. But appellants were relieved from a compliance with the order made in that connection by stipulation of the parties, filed in the cause, which provided that in lieu of the filing at that time of an additional supersedeas bond appellants should pay respondents $1200 then and $500 per month thereafter until final judgment in the court of last resort. The stipulation contained this further provision:

"If and when the amount of damages accruing under the judgment rendered by the lower court herein, including interest and plaintiff's costs, shall nearly approach the sum total of the present supersedeas bond of $25,000, and the aggregate amount of the payments aforesaid, the right is hereby reserved to plaintiff to take any available steps to require defendants to furnish additional security for the payment of said judgment."

The foregoing with reference to the steps taken by the respondents in the appeal, during the pendency thereof, to secure the performance of their judgment in the event it was affirmed, does not, as contended by the appellant in this case, negative the view that all parties to the appeal regarded the appeal bond as effective in the staying of execution, but on the contrary confirms it.

In an early day this court held, on a state of facts similar to those presented by this record, that when a bond merely falls short of the statutory enumeration (of conditions) in such a manner as to be more favorable to the party executing it, he will not be heard to complain, if, after it has answered all his purposes, he is held liable to its penalties. [State v. Berry,12 Mo. 377.] That ruling has been consistently adhered to (Newton v. Cox, 76 Mo. 352; Flint v. Young, 70 Mo. 222), and is in accord with the weight of authority elsewhere. [9 C.J. 24.] Appellant's contention under this head is disallowed.

III. It is contended by appellant that the purported judgment, to stay the execution of which the bond in controversy was ostensibly given, is void because the entire proceeding in the circuit court which culminated in the so called judgment was coram non judice. This, on the ground that mandatoryCoram procedural requirements prescribed by the statuteNon Judice. for the removal of causes in unlawful detainer by certiorari from the justice court to the circuit court, were not complied with. A consideration of the question presented involves a construction of the relevant provisions of the statute. As none of the sections have been amended since 1909, they will be referred to according to their numbering in the Revised Statutes of 1919.

The record under review shows that the complaint in unlawful detainer, making Kelly, Paul LeMarquand, A. LeMarquand, LeDoux, Bonfils, Tammen and Empress Theatre Company defendants, was filed in the justice court on November 1st (1915); that on the same day summons issued as to all the defendants returnable November 9th; that on November 2nd Tammen and the two LeMarquands were personally served; that on November 3rd, A. LeMarquand, who had been served, and LeDoux, who had not been served, made application to remove the cause by certiorari to the circuit court, accompanied by the requisite affidavit and bond; and that a writ of certiorari was issued and served on the justice November 4th, requiring him within ten days thereafter to certify a transcript of his docket and all proceedings had before him to the circuit court, which he did. According to the appellant's construction of Sections 3031, 3032, 3035 and 3036, the cause was not removable to the circuit court by certiorari until all the defendants had been served with summons or notified by publication, and not then, unless all defendants joined in the application for such removal. If his construction is the proper one, then the cause is still pending in the justice court, as he contends.

The provisions of the statute which relate to removal by the defendant (Sections 3035 and 3036), in designating that party to the record, use the singular number, "the defendant." They contain no express direction as to the mode of proceeding where there is more than one defendant. If "the defendant," as applicable to such cases, is used in a collective or party sense, requiring all defendants to concur in a removal, then in many cases the defendant upon whom would fall the main burden of an adverse judgment will be denied the right of removal. One defendant might consider that his relation to the litigation was such as not to justify the incurring of the obligation of a removal bond, or he might be induced to withhold his concurrence in a removal through arrangement, or even collusion, with the complainant. The object of these removal provisions is "to enable the parties to remove their case to a tribunal where more learning in law matters could be brought into requisition than is usually found before justices of the peace." [Kincaid v. Mitchell, 6 Mo. 224.] This object would be frustrated if one defendant's right to avail himself of the statutory privilege can be defeated by the caprice, antagonistic interest, or fraud, of another who happens to occupy the same relation to the record that he does. On the other hand if one defendant removes the cause to the circuit court by assuming the entire burden attendant upon such removal, his co-defendants can in no way be prejudiced thereby. There is no call to give these removal provisions of the statute a narrow construction. Where a limited jurisdiction is conferred by statute the construction is strict as to the extent of jurisdiction; but liberal as to the mode of proceeding. [2 Lewis-Southerland on Statutory Construction (2 Ed.) 686.] The statute in hand carries on its face such implications with respect to its own construction. [Sections 3058, 3064, 3065.] That interpretation should be adopted therefore which will give effect to the evident purpose and intendment of the statute in respect to the removal of causes bycertiorari. Accordingly we hold that the words, "the defendant," in Section 3035, as applicable to cases having more than one defendant, are used in their distributive sense, meaning any one of the defendants.

It is next asserted that by virtue of the provisions of Section 3031 the cause was not removable by certiorari until all the defendants were served with summons or notified by publication. Under the complaint filed in the justice court the defendants stood charged with the commission of a tort, for which, if guilty, they were jointly and severally liable. On November 3rd, A. LeMarquand and two others were personally served with summons returnable November 9th. In order to secure a removal of the cause to the circuit court it was necessary for him to take the requisite steps therefor "before the day of trial." [Section 3031.] He could not, without jeopardizing his right of removal, have waited until the return day of the writ to determine whether all of his co-defendants had been served, because on that day, presumptively the day of the trial the complainant might have dismissed as to all defendants not served and proceeded with the trial as to those who have been served. This it had the right to do. [Dutton v. Tracy, 4 Con. 79; Harman v. Odell, 6 Gratt. (Va.) 207; 26 C.J. 845.] As already stated the action as to the defendant was joint and several. November 3rd, the day when defendant A. LeMarquand sued out the writ of certiorari, was "any time after the service of the summons," so far as he was concerned. So far as LeMarquand was concerned jurisdiction had fully attached, and nothing further was required to make the action against him removable to the circuit court.

The removal by defendant A. LeMarquand of the suit against him operated as a removal of the entire cause. At least no vestige of it was left in the justice court. Upon the service of the writ ofcertiorari on the justice, before the day of trial, it became his duty to stay all further proceedings, and certify to the circuit court a complete transcript of his docket and all proceedings had before him, together with the original papers filed in the cause. [Section 3038.] This he did. Thereupon the circuit court became authorized to "proceed to hear, try and determine the same [the cause] anew, as if it had originated in such court." Defendant LeDoux by joining with A. LeMarquand in the application for the writ of certiorari waived service of summons, as did also the defendants Kelly and Bonfils by their voluntary appearance in the circuit court and answering to the merits. [Ser v. Bobst,8 Mo. 506.]

Appellant strenuously insists that the question of jurisdiction he has raised is ruled by the judgment of this court in State ex rel. Kelly v. Trimble, 297 Mo. 104, 247 S.W. 187, dealing with a branch of the general litigation out of which the present proceeding grows. That judgment was rendered after the judgment and appeal in this case. But if it had been rendered before, it could not have been invoked as a bar to this action on the ground of res adjudicata or estoppel, because the appellant here was not a party to the proceeding in which it was rendered, nor in privity with any one who was. The opinion announcing that judgment was not, it seems concurred in by a majority of the members of the court as then constituted. In any event, its holding, that in an unlawful detainer action service of process on the defendant, or notice to him by publication, in the manner prescribed by the statute, is a requisite of jurisdiction as to subject-matter, and cannot therefore be waived by the voluntary appearance of the defendant, is so anomalous that it cannot be treated as a precedent.

We find no reversible error in the record. The judgment below was for the right party and should be affirmed. It is so ordered.