State ex rel. Duggan v. Dillon

Thompson, J., delivered the opinion of the court. This application arises in this way: On the sixteenth of June, 1881, Michael Carroll recovered a judgment in the circuit, court of Dubuque county, Iowa, against John Thornton for the sum of $4,499.00 with interest and costs. Thereafter Carroll commenced a suit in equity in the circuit court of the city of St. Louis, to sequester. certain annuities payable to Thornton as life tenant by Peter Richard Kenrick, trustee. By consent, Archbishop Kenrick paid into court two semi-annual instalments of the profits of the estate held by him, and the court made an order that he should pay into court the successive instalments until the further order of the court, subject to his right of an allowance to be thereafter made, which should be taxed as costs in the cause. By agreement, Michael Duggan was made a party defendant in the character of assignee of the interest of Thornton. In the meantime Carroll died, arid the suit was revived in the name of Tittmann, public administrator. Thereafter such proceedings were had that, on the twenty-sixth day of January, 1888, a final decree was entered, charging the plaintiff’s judgment on the rents, issues, and profits of the fund in the hands — 539 — of Archbishop Kenrick, requiring him to pay the same into court for the use of the plaintiff until the amount found due by the decree should be satisfied, or until the death of Thornton should appear; directing the clerk of the court, after the payment of the costs, to pay the balance of the fund in his hands (paid into his hands by Archbishop Kenrick, as already stated) to the plaintiff Tittmann, and providing that the cause be retained for the further satisfaction of the decree in the manner aforesaid, until the same be fully satisfied, or until the death of the defendant Thornton be made to appear to the court. From this decree the defendant Duggan, professing to act for himself and the other defendants, prosecuted an appeal to this court, and gave an appeal bond, couched in the usual terms, in the sum of eight hundred and. fifty dollars. The plaintiff’s judgment with interest and costs amounted at the time of .this decree to something more than six thousand dollars, but as the fund out of which the instalments issued, which Archbishop Kenrick was required by the decree to pay into court, was settled upon him in trust to pay the same to Thornton during his natural life, remainder to others, the amount which would ultimately be paid into court under the decree might at any time be determined by the death of Thornton. It is to be noticed, in this state of facts, that there is a question of some difficulty, whether the appeal properly lay to this court or to the Supreme Court, but we pass this as a matter not necessary to our decision. The judgment of the circuit court was in favor of the plaintiff Tittmann in the sum of $6,323.19. The fund presently disposed of by the judgment of the court appears to have exceeded nineteen hundred dollars. The death of Thornton might prevent the fund disposed of under the judgment from ever reaching the sum of twenty-five hundred dollars, though if he should live until the decree should be satisfied by the gradual sequestration of the profits of the fund in the hands of the archbishop, according to its terms, the amount paid — 540 — into court, and -thence paid to the plaintiff, would, as already seen, amount to more than six thousand dollars, which amount would oust this court of jurisdiction and vest the appellate jurisdiction over the cause in the, Supreme.Court. After this appeal had been granted and this bond given, and the term at which the decree was rendered had elapsed, on motion of the plaintiff, the court made an order upon the clerk to pay over to him such sum as was then in his hands subject to the decree, after satisfying the costs then accrued. To restrain the execution of this order, Michael Duggan, the appellant and defendant in that suit, brings into court a petition for a writ of prohibition against the judge of the circuit court, the clerk of said court, and the public administrator, who is the plaintiff in that suit. The substantial question for our decision is, whether the circuit court is acting without jurisdiction in directing the disbursement of this fund, and, if so, whether the petitioner has exhausted his remedy in that court. This court is .of opinion that, the order of the circuit court is merely an order in the nature of an execution of its decree ; that the bond, which was given in the suof eight hundred and fifty dollars, is not a sufficient bond to supersede the execution of the decree,, under the terms of section 3713 of the Revised Statutes; and that, consequently, the circuit court has jurisdiction to proceed with the execution of its decree under the doctrine announced by this court in State ex rel. v. Adams, 9 Mo. App. 464. By the terms of the statute (Rev. Stat., sec. 3713), the allowance of an appeal stays the execution “in the following cases, and no others: * * * Second, when the appellant, or some responsible person for him, together with two sufficient securities, to be approved by the court, shall, during the term at which the judgment appealed from was rendered, enter into a recognizance to the adverse party, in a penalty double the amount of whatever debt, damages, .and costs, or damages and costs, have been recovered by — 541 — such judgment, together with the interest that may accrue thereon, and the costs and damages that may be recovered in any appellate court upon appeal,” etc. It is scarcely necessary to say that, where" the fund which is the subject of the immediate operation of a final judgment is over nineteen hundred dollars, which appears to be the case here, and subject to be increased by semi-annual payments of six hundred dollars, abond in the sum of eight hundred and fifty dollars does not satisfy this statute and work a supersedeas of the decree. Unless, therefore, there is something in the circumstance that this fund is in the hands of the clerk, and that the subsequent payments of instalments by the trustee will be made to the clerk until a fund is raised sufficient to satisfy the decree, unless the life tenant dies in the meantime to take the case out of the statute, the case must be decided for the defendants upon the reading of the statute, and in view of its -settled construction, without entering upon any further consideration. An appeal may be prosecuted without giving any bond at all; and, where an appeal-bond is tendered, the court to which it is tendered is concerned only with the goodness of the sureties, and not with the amount of the bond. The appellant must see, at. his peril, that the bond is sufficient in amount to operate as- a supersedeas under the statute, and whether it does so operate is a question which does not arise for decision when the bond is tendered, but which arises (as in the present case) when execution is sued out to enforce the judgment, notwithstanding the appeal. State ex rel. v. Adams, 9 Mo. App. 464. A supersedeas is obtained only by complying with the statute, and an appeal bond works a supersedeas only when it is sufficient under the terms of the statute. Mo. Pac. Ry. Co. v. Atkison, 17 Mo. App. 494. The statute contains no exceptions applicable to a case where the fund disposed of by the judgment is in the hands of the clerk of the court or of any other bonded officer. And, while the fund would undoubtedly — 542 — be entirely safe in the hands of the excellent and responsible officer who now holds it, yet as the law has made no exception applicable to such a case, we can make none. The same observations may be made concerning so much of the decree as requires the archbishop to pay the successive instalments into court until the further order of the court. If the appeal were held to be a supersedeas of the decree, it would seem that it would operate as a supersedeas of that part of the decree which requires the archbishop to pay these instalments into court; so that, during the pendency of the appeal, the plaintiff will have, for the performance of this part of the decree, no better security than the solvency of the trustee who holds the fund. While there is not the slightest room to doubt that the venerable prelate who has taken on himself the burden of acting as trustee in this case will comply with the decree of the court so far as he is concerned ; yet it is to be observed here, as in the case of the clerk, that -the law—and especially the statute law,—does not adjust its rules according to the character of particular persons. It is stated in the petition and was pressed upon our attention in the oral' argument, that the circuit court fixed a bond in the sum of eight hundred and fifty dollars, as a bond which, under the circumstances of the case, would operate as a supersedeas of the decree. The circuit court can only speak by its records, and no record of that court has been presented to us which contains any order characterizing the bond as sufficient for a supersedeas. We cannot adjust our holdings to any allocution, which may be shown by oral testimony or otherwise, to have passed between the circuit judge and a party before him tendering an appeal bond. The judge was bound, under our decision in State ex rel. v. Adams, supra, to accept a bond in any sum which was tendered, provided • he found the sureties to be good; and the question whether the bond would operate as a supersedeas of the judgment did not arise then, but properly arose when the plaintiff moved for an order in the — 543 — nature of execution. Whatever may have been said by the judge to the appellant, when the bond was accepted, would not change the law, or be the act of the court, or estop the court, in respect of its subsequent dealings with the case; nor can it have any effect on our decision. The circuit court, then, had authority to proceed with the execution of its decree, notwithstanding the appeal; and, .laying out of view any other questions which might have been discussed if this conclusion were at all doubtful, the judgment of the court will be that the present petition be dismissed. It is so ordered. Peers, J., concurs ; Rombauer, P. J., is absent.