Blanchard v. Wolff

Gantt, P. J., delivered the opinion of the court. It appears from the record before us that Blanchard sued'. Wolff for the conversion of certain personal property; that, Wolff denied the conversion and set up new matter, to which. Blanchard replied ; that a trial was had, at which Blanchard became nonsuit; that he filed a motion to set the nonsuit, aside, which the court overruled; and that he presented, and the court signed, a bill of exceptions which omitted to set. forth the motion to set the nonsuit aside, and failed to save an exception to the action of the court overruling the-motion; that the court in general term reversed the judgment of the court at the special term; that the defendant, Wolff, filed a motion for rehearing, and that this motion was-overruled by the court in general term. Thus far we are able-to go, but here we are obliged to stop. There is no .appeal in this case which authorizes us to “ hear and determine ’ ’ the matters which have been argued, and argued with ability, by the counsel for appellant. Obviously there is no final judgment in the cause. Plaintiff took a nonsuit with leave,, etc. The refusal of the court at special term to set this, nonsuit aside was final as to him. He properly went to the general term to get rid of this judgment. When the general term reversed the judgment of the special term, thenonsuit was set aside and the cause reinstated. It stood for trial de novo. Clearly there was no final judgment, and it is only from “ final judgments ” that an appeal is allowed by the general law. 2 Wag. Stat. 1059, sec. 9. But an appeal is allowed from the judgments of the St. Louis [523] Circuit Court in general term, although such judgments-may not be final, under the peculiar provisions of section 2 of the act of February 25, 1869. Session Acts 1869, p. 17. In order to take an appeal under this section, off course compliance with its conditions must be shown. Only by observing those conditions could the defendant take such an appeal. One of these is the giving of a bond in a penal sum sufficient to secure to the plaintiff the satisfaction off any judgment that may be rendered in the cause, to be approved by the court. If the court had approved a bond, in an insufficient penal sum, we might think ourselves warranted in allowing the appeal to stand, on condition of the-appellant perfecting a proper bond here; but that is the utmost stretch of indulgence. Without any bond at all, the Circuit Court had no power to allow an appeal, and in this-case no bond was offered or approved; consequently, there-is no appeal from the decision of the Circuit Court in general term, and we order that fact to be certified to the Circuit Court, so that it may proceed with the determination of the cause in such manner as the state of the record will allow. All the judges concur.