Wagoner v. Busey

Missouri Court of Appeals

Wagoner v. Busey

75 Mo. App. 377, 1898 Mo. App. LEXIS 440

DecidedMay 10, 1898

StatusPublished

This text of 75 Mo. App. 377 (Wagoner v. Busey) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wagoner v. Busey, 75 Mo. App. 377, 1898 Mo. App. LEXIS 440 (Mo. Ct. App. 1898).

Pincite

Opinion

Biggs, J. —

On the nineteenth day of February, 1897, the circuit court sustained a motion for costs. The plaintiff was required to file a bond for costs sixty days before the first day of the next term of court thereafter, to wit, the August term. The plaintiff failed to comply with the order within the prescribed time. The cause was set for trial August 21, 1897. On the seventeenth of August, and during the August term, the plaintiff filed the undertaking of Chas. F. Vogel to pay the costs, to which was attached the affidavit of Vogel, that he owned unincumbered property, subject to sale under execution of the value of $600 or more. On the following day, to wit, the eighteenth, the defendants filed a motion to dismiss the cause for failure on the part of plaintiff to comply with the order of the court. On the nineteenth and during the absence of plaintiff’s attorney, the court sustained the motion to dismiss. Afterward on the same day plaintiff filed a motion to set aside the order of dismissal and to reinstate the cause on the docket. The grounds of this motion were, first, that the order requiring a cost bond was improvidently entered, as no notice of the motion for costs was given, either to the plaintiff or his attorney, as required by the rules of court, and, second, that the plaintiff had fully complied with the rule before the motion to dismiss was disposed of. (R. S. 1889, sec. 2916.) The rule of court referred to requires notice of the filing of a [379]*379motion for cost to be given to the adverse party or his attorney. There was evidence tending to prove that no notice was given of the motion in this case. On the other hand, the attorney for the defendants testified that the attorney for plaintiff was advised of the filing of the motion and consented that the order for the cost bond might be entered. After the hearing of the testimony the court ruled that the bond signed by Yogel would not be accepted, but that it would sustain the motion to set aside the dismissal, if the plaintiff would deposit with the clerk of the court the sum of $200. This the plaintiff failed to do, and on the twenty-fourth day of the month the motion to set aside was overruled, and the plaintiff excepted. Thereupon the plaintiff appealed to this court. There was evidence tending to prove that the attorney of the plaintiff waived the notice of the filing of the motion and consented that the order requiring the bond to be given should be entered. We must assume that the court found these to be facts. This disposes of the first assignment of error. The affidavit of Yogel did not satisfy the mind of the court of his ability to meet the obligations of the bond. We would not be justified in saying that the court acted arbitrarily or with judicial bias in declining to accept the bond on this proof. Yogel was a resident of the city of St. Louis and was probably a stranger in the county where the suit was pending. However, the court in order that no injustice might be done, gave the plaintiff an opportunity to deposit a sum sufficient to cover the costs. This the plaintiff failed to do, and thereupon the court overruled the plaintiff’s motion to set aside the order of dismissal, in which we think it was justified.

With the concurrence of the other judges the judgment of the circuit court will be affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Biggs, J. —

On the nineteenth day of February, 1897, the circuit court sustained a motion for costs. The plaintiff was required to file a bond for costs sixty days before the first day of the next term of court thereafter, to wit, the August term. The plaintiff failed to comply with the order within the prescribed time. The cause was set for trial August 21, 1897. On the seventeenth of August, and during the August term, the plaintiff filed the undertaking of Chas. F. Vogel to pay the costs, to which was attached the affidavit of Vogel, that he owned unincumbered property, subject to sale under execution of the value of $600 or more. On the following day, to wit, the eighteenth, the defendants filed a motion to dismiss the cause for failure on the part of plaintiff to comply with the order of the court. On the nineteenth and during the absence of plaintiff’s attorney, the court sustained the motion to dismiss. Afterward on the same day plaintiff filed a motion to set aside the order of dismissal and to reinstate the cause on the docket. The grounds of this motion were, first, that the order requiring a cost bond was improvidently entered, as no notice of the motion for costs was given, either to the plaintiff or his attorney, as required by the rules of court, and, second, that the plaintiff had fully complied with the rule before the motion to dismiss was disposed of. (R. S. 1889, sec. 2916.) The rule of court referred to requires notice of the filing of a [379]*379motion for cost to be given to the adverse party or his attorney. There was evidence tending to prove that no notice was given of the motion in this case. On the other hand, the attorney for the defendants testified that the attorney for plaintiff was advised of the filing of the motion and consented that the order for the cost bond might be entered. After the hearing of the testimony the court ruled that the bond signed by Yogel would not be accepted, but that it would sustain the motion to set aside the dismissal, if the plaintiff would deposit with the clerk of the court the sum of $200. This the plaintiff failed to do, and on the twenty-fourth day of the month the motion to set aside was overruled, and the plaintiff excepted. Thereupon the plaintiff appealed to this court. There was evidence tending to prove that the attorney of the plaintiff waived the notice of the filing of the motion and consented that the order requiring the bond to be given should be entered. We must assume that the court found these to be facts. This disposes of the first assignment of error. The affidavit of Yogel did not satisfy the mind of the court of his ability to meet the obligations of the bond. We would not be justified in saying that the court acted arbitrarily or with judicial bias in declining to accept the bond on this proof. Yogel was a resident of the city of St. Louis and was probably a stranger in the county where the suit was pending. However, the court in order that no injustice might be done, gave the plaintiff an opportunity to deposit a sum sufficient to cover the costs. This the plaintiff failed to do, and thereupon the court overruled the plaintiff’s motion to set aside the order of dismissal, in which we think it was justified.

With the concurrence of the other judges the judgment of the circuit court will be affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

75 Mo. App. 377, 1898 Mo. App. LEXIS 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagoner-v-busey-moctapp-1898.