J. H. Rothman Distilling Co. v. Kermis

79 Mo. App. 111, 1899 Mo. App. LEXIS 243

• Court: Missouri Court of Appeals
• Decided: February 21, 1899
• Status: Published

Opinion

BLAND, P. J.

Plaintiff on March 4, 1897, recovered a judgment against the defendants, other than Westbay, before a justice of the peace, from which they appealed to the Barry circuit court. The appeal bond was indorsed approved by the justice March 15, 1897. The bond is in the following form: “We, E.*C. Kermis as principal,'and * * ' * as surety acknowledge ourselves to owe and stand indebted to Rothman Distilling Company in the sum of one hundred and eighty-five dollars, to be void upon this condition:

“Whereas, E. O. Kermis has appealed from the judgment of Walt Williams, J. P., in an action between Rothman Distilling Company, plaintiff, and E. O. Kermis, defendant, to the circuit court of Barry county; now if in such appeal the judgment of the justice is affirmed by said court or if on trial anew in the said court judgment be given against the appellant and he shall satisfy such judgment or if his appeal shall be dismissed by said court and he shall pay the judgment of the justice, together with the costs of the appeal, this recognition shall be void.

“E. O. Kermis, (Seal.)

“Harry H. Westbay. (Seal.)”

On application of defendants the venue of the cause was changed from the Barry to the Newton circuit court, where, on trial de novo, the plaintiff recovered judgment, from which after unsuccessful motions for rehearing and in arrest of judgment defendant Westbay procured an order from a judge of this court in vacation allowing him an appeal under the -provisions of section 2250, Revised Statutes 1889. (The judgment in the Newton circuit court was against both principals and surety on the appeal bond.)

right of appeal, I. Appellant’s first contention is that the Newton circuit court had no jurisdiction to render any judgment in the cause, because the appeal bond was filed and approved out of time by the justice. The justice made no filing marks on the bond, but his docket entries show that the bond was deposited with him on the day after the judgment was rendered, and that on March 15 the attorneys of the plaintiff appeared before him and moved him to disapprove the bond, whereupon he heard evidence, overruled the motion, and approved the bond, and indorsed his approval thereon. The statute, section 6328, Revised Statutes 1889, provides that, the appeal recognizance shall be taken before the justice and approved by him, before an appeal shall be allowed, which must be within ten days if the applicant is a resident of the county where the trial is had, and within twenty days if a non-resident. The record does not disclose whether the applicant was or was not a resident of Barry county, where the trial was had, but we do not deem this material in the view we take of the case. The justice granted the appeal, and so far as the question of the jurisdiction of the circuit court to try the case de novo is involved, it is immaterial whether any appeal bond was given, or whether given out of time; the affidavit for an appeal and the granting of the appeal by the justice conferred jurisdiction on the appellate court, by reason of the provisions of section 6340, Revised Statutes of 1889, which provides, among other things, that such an appeal shall not be dismissed for want of a bond or a sufficient bond, if a good and sufficient bond be given before the determination of a motion to dismiss, and it does not lie in the mouth of the appellant to say the court erred for failing to require him to do that which' he should have done if his appeal bond was insufficient ; nor can he on an appeal take advantage of his own default or negligence, after having submitted himself to the jurisdiction of the court, in a matter over which the court acquired jurisdiction by virtue of his affidavit and the order of the justice granting the appeal. But the applicant was in no wise remiss in the performance of the statutory requirements to perfect his appeal; Ms bond was deposited with the justice in ample time, and the fact that the justice failed to perform his duty to approve the bond within the statutory limit, was not the fault of the applicant, and could not deprive him of his stautory right of appeal or invalidate his appeal bond. R. S. 1889, sec. 6334; Jester v. McKinney, 47 Mo. App. 62.

II. Another contention of appellant is that the Newton county circuit court had no jurisdiction to render judgment against him as surety on the appeal bond; that his undertaking was confined to such judgment only as the Barry county circuit court might render. The bond taken and approved by the justice was not tbe statutory one required to be given by applicants for appeals from justices’ courts; the undertaking of the surety by the very terms of the bond is limited to such judgment as the Barry circuit court might render in the cause, and it is well settled law that the surety can not be held beyond the precise terms of Ms obligation. Blair v. Ins. Co., 10 Mo. 560; Bauer v. Cabanne, 105 Mo. 110; Erath v. Allen, 55 Mo. App. 107; Bricker v. Stone, 47 Mo. App. 530. In Cranor v. Reardon, 39 Mo. App. 306, it was held by the Kansas City Court of Appeals that a bond to perform each judgment as should be given by the supreme court is not an obligation to perform the judgment of the Kansas City Court of Appeals, although the case in which the bond was given, was under the constitution, appealable to the Kansas City Court of Appeals. Judge Ellison, who wrote the opinion, in the discussion says: “In this case the sureties have seen fit to limit their obligation, not to the result of the case generally, nor to the determination of an appellate court generally, but to a certain named court.” In Nofsinger v. Hartnett, 84 Mo. 549, the appeal bond was to abide the judgment of the St. Louis Oourt of Appeals,towhich court the cause was appealed; from this court it was appealed to the supreme court, where the judgment was rendered. In a suit on the appeal bond it was held that the sureties were not liable, because the court which rendered the judgment was not named in the bond. So in this case the court which rendered the judgment against Westbay, the surety, is not named in the bond, and the judgment as to him is erroneous, for which reason it is as to defendant and appellant H. H. Westbay reversed.

All concur.