Kreyling v. O'Reilly

BLAND, P. J. Plaintiffs have filed in this court a certified’copy of the judgment rendered by the St. Louis Circuit Court on June 2, 1902, and a copy of an order granting the appeal therefrom to this court. Plaintiffs also present an appeal bond in the penal sum of two hundred and fifty dollars and move this court to fix the amount of the appeal bond to approve the one they have presented and to order a stay of execution of the judgment of the circuit court. The right of appeal did not exist in common law and is purely statutory. In re Bauer, 112 Mo. 231; State ex rel. v. Woodson, 128 Mo. 497; State v. Clipper, 142 Mo. App. 474; State v. Brown, 153 Mo. 578. The right itself being purely statutory, such steps can only be taken on the appeal as are provided for by statute. Under the provisions of section 809, Revised Statutes 1899, the court from which an appeal is taken may fix the amount of the appeal bond at the time the appeal was taken. The next succeeding section (810) authorizes any judge of the Supreme Court or any judge of either of the Courts of Appeals, on an inspection of the record, to grant an appeal and to fix the amount of the appeal bond. If, after an appeal has been perfected and a supersedeas bond has been given and approved and while the case is pending in the appellate565 court, it is made to appear to the appellate court that the court or judge taking the bond committed error in approving it, as where the bond is defective in form and substance, or when the sureties are insufficient, the appellate court may require a new bond as a condition to the continuation of the supersedeas. American Brewing Co. v. Talbot, 125 Mo. 388; American Brewing Co. v. Talbot, 135 Mo. 170. Beyond these powers none are conferred on the appellate court to fix the amount of an appeal bond or to take and approve the same. The appeal in this case having been allowed by the circuit court, that court alone is vested with the power to fix the amount of the appeal bond. The motion is therefore denied.