State ex rel. Heckel v. Klein

OPINION. Barclay, C. J. Relators ask a peremptory mandamus to compel Judge Klein to approve an appeal bond in a suit tried before him. The circumstances of the application to him and of his refusal are described in [679] the preliminary statement opening the official report of the hearing in this court. The relators (who submitted the bond in question) were defendants in the suit. The final judgment against them involved their removal from office as president, secretary, and treasurer of a corporation, and the immediate transfer of the corporate books, accounts, and other property to a receiver appointed by the court. Relators were entitled to appeal from that judgment and to stay proceedings to enforce the execution of the judgment pending the appeal by complying with the law regulating stay of execution on appeals. R. S. 1889, sec. 2249. The word “execution” appearing in the section cited, with reference to a stay during proceedings on appeal, has been held to comprehend not merely the ordinary writ of execution to collect money, but also any and all process to enforce any affirmative command of a judgment, whatever its nature. Thus an appeal (with proper borid) has been held to stay the issue of a peremptory mandamus (State ex rel. v. Lewis (1882) 76 Mo. 370), and to stay the sale of attached property during an appeal by-an interpleader. State ex rel. v. Ransom (1885) 86 Mo. 327. And the enforcement of an interlocutory order for the appointment of a receiver was considered by a majority of the court as within the scope of the term “execution” as used in section 2249. State ex rel. v. Hirzel (1897) 137 Mo. 435; s. o., 137 S. W. Rep. 921, and 38 S. W. Rep. 961. Section 2249 expressly declares that, upon compliance with certain named conditions, the order allowing the appeal “shall stay the execution.” We do not consider ourselves at liberty to nullify that clear command, even if we regarded the security afforded by the terms of the bond prescribed by that section as in some [680] eases inadequate to indemnify against the stay of proceedings. The law declares that a certain sort of bond shall operate as a stay, and we merely hold that the law means what it says. We are of opinion that sections 2249 and 2255 sufficiently show the construction above indicated to have been intended by the lawmakers. Though it must be confessed that the expression of that intent is not as satisfactory as is desirable in a law so frequently applied. It was held in State ex rel. Duggan v. Dillon (1889) 98 Mo. 90 (11 S. W. Rep. 255) that the approval of an appeal bond determines the question of its sufficiency to effect a stay of proceedings. That ruling has been since approved. Am. Brewing Co. v. Talbot (1896) 135 Mo. 170 (36 S. W. Rep. 657). So there can be no doubt that had Judge Klein approved the appeal bond for $500, a stay of proceedings (to enforce the affirmative parts of the final judgment) would have resulted. It was for him, as trial judge, in the exercise of a sound discretion, to decide what amount of bond should be given to afford adequate indemnity to the adverse party in case of appellants’ failure to comply with the judgment of affirmance. This court will not (on mandamus) reverse the action of a trial judge, in passing upon the sufficiency of an appeal bond (obviously offered to obtain a stay of proceedings) except in event of a manifest abuse of his authority. We discover no abuse of discretion in the Vogelsang case. In view of the nature of that suit and of the judgment therein rendered, we regard as entirely correct his holding that a bond for $500 was inadequate to secure a stay. The learned judge did not specify what amount of bond should be given for that purpose. Nor was he [681] required to do so officially, unless upon an application by motion, which was not made. The object of an appeal bond is, among other things, to secure performance of the judgment that may finally be rendered in the cause upon, or after, the appeal. This is the plain meaning of the condition of the bond as defined by section 2249. In respect of a judgment such as that in view in the Vogelsang case, it is the peculiar province of the trial judge to determine what bond will reasonably suffice to secure performance of it, and to protect the full fruits thereof in ease the bond must be resorted to for that purpose thereafter. Judge Klein will no doubt indicate what sum he regards as proper security on being duly requested so to do. We hold that he should not be compelled to approve the bond heretofore submitted, and hence deny a peremptory writ. Judges Maoeablane, Robinson, and Bbace concur. Judge Bubgess dissents. Judges Gantt and Shebwood are absent.