Jordan v. Vaughn

GOODE, J. Yowell had an action in the circuit court of Monroe county against the defendant Vaughn. The other parties, Thompson and Jordan, who are the appellants here, were the sureties of Yowell on a cost bond. After one trial of the action and a reversal of the judgment by this court, it was dismissed for failure to prosecute it and afterwards, the court, on motion of the defendant, entered judgment against Yowell and his two sureties for the costs. The sureties took this appeal. The cost bond was lost before judgment was rendered on it; but its contents were proven and were, substantially, that the parties to it bound themselves to pay all the costs that had or might accrue in the cause. An affidavit to show its loss and its contents, was duly filed in the circuit court prior to the judgment. That it was lost and what it contained were proven, too, by one of the attorneys for the sureties; and there is no dispute about those facts. Several objections were raised by the sureties to judgment being rendered against them for the costs; but only one point is discussed in their brief on this appeal; namely, that it devolved on the defendant Vaughn to proceed under sections 4560 and 4561 of the Revised Statutes, to supply the bond. Section 4560 was, as stated, complied with when the affidavit, containing a statement in writing of the full contents of the lost instrument, was filed. Section 4561 enumerates the instruments to which its provisions are intended to apply and a bond for costs is not one of [113] them. That section relates to judgments, inventories, sale-bills, or other orders of a county or a probate court. It provides two distinct procedures; one to supply lost judgments or executions, the other to supply a lost inventory, sale-bill or order of a county or a probate court. The court committed no error in supplying the bond on the proof made, as such a procedure fell within its general powers. State v. Simpson, 67 Mo. 647; Railroad v. Holladay, 131 Mo. 440. This is not an action on a lost instrument within the meaning of sections 642 and 643, and it is conceded that plaintiff did not have to proceed according to those sections. The judgment for costs was properly rendered against the sureties on the bond (Schawacker v. McLaughlin, 139 Mo. 323), and is affirmed. Bland, P. J., and Reyburn, J., concur.