Missouri Pacific Railway Co. v. Atkison

Opinion by Philips, P. J.

This is an action to recover on a promissory note executed by defendants to a railroad corporation, designated as “The Lexington and Southern Railway Company.” Said note is in words as follows :

“$360.00. Butler, Mo., January 1st, 1880.

On or before the 1st day of January, A. D. 1881, we or either of us promise to pay to the order of the Lexington & Southern Railway Company, the sum of three hundred and sixty dollars, for value received.

R. A. & John Atkison.”

To this was attached the following stipulation or contract as expressive of the consideration of the note:

“The above note for $360, dated January 1st, 1880, and payable on or before the 1st day of January, A. D. 1881, to the order of the Lexington & Southern Railway Company, executed by R. A. & John Atkison, is to be placed in the hands of F. J. Tygard, cashier of the Bates County National Bank, at Butler Mo., in escrow, to be held by him until the said railway company shall complete and put into operation its railroad of standard gnage from the town of Pleasant Hill, Cass county, to the city of Butler iñ said Bates county, and shall also establish and construct a depot within three-fourths of a mile of the court house in said city of Butler. If the same is all done and completed, as aforesaid, by or before the 1st day of January, 1881, then said note is to become absolutely the property of and to belong to, and is to be by the said Tygard delivered to the said Lexington & Southern Railway Company, and the said makers of said notes are to pay the amount thereof according to its tenor and effect. But if said Lexington & Southern Railway Company fail to complete and put in operation its said railway . and construct its said depot as herein provided, then the said *491 Tygard is to return said note to the makers thereof, to be disposed of as they may see proper.

In witness whereof, all the said parties have hereunto' signed their names and affixed their respective seals this: 1st day of January, 1880. R. A. & John Atkison.

By E. H. Brown, Pres. L. & S. Ry.”

The said note being in custody of said Tygard, as expressed in said stipulation, together with other similar notes, after the first day of January, 1881, the plaintiff, having succeeded to the rights of the said payee in said note by consolidation and claiming to have complied with' the conditions which entitled it to the possession of said, notes, made demand on said Tygard therefor. On his refusal to surrender to plaintiff said notes, it brought action against him therefor in the circuit court of Bates county. He answered setting up how he held this and the other notes, executed with like conditions, alleging that the makers claimed that the plaintiff had not complied with the conditions which entitled it to the possession thereof, and asking that the makers be brought in as parties defendant. They were accordingly permitted to come-in and answer, pleading substantially the same facts touching the non-compliance of plaintiff with said contract. The issues thus joined were found for the plaintiff, and judgment was rendered accordingly. The notes having been turned over by defendant Tygard to the sheriff in said action, and by the sheriff to plaintiff, it was adjudged (the plaintiff having elected to retain the possession of the notes, amounting in the aggregate to the value of $13,147.50) that it retain the same, and have and recover of the said Tygard one cent damages, and of the other defendants all the costs incurred in the case since filing of the amended answer therein by Tygard on the 22d day of March, 1881, and that the remainder of the costs be paid by plaintiff.

From this judgment the said makers of said notes duly prosecuted their appeal to the Supreme Court, but the defendant Tygard did not appeal, or sue out any writ of error. The amount of appeal bond given by said appel *492 lants was $800. Alter the said judgment, to wit, on the. 20th day of June, 1882, the plaintiff brought this action against the defendants to recover the amount alleged to be due and owing on said note. The defendants answered .setting up the same matters of defence as in the replevin suit, with the further defence that the plaintiff was not entitled to bring this action because of the pendency of said action in replevin on appeal in the Supreme Court.

On application of defendants, the cause was transferred by change of venue to the circuit court of Cass county where on trial had the plaintiff recovered judgment, from which the defendants again appealed to the Supreme Court, and this cause being pending there at the time of the adoption of the constitutional amendment creating this court, the case has been accordingly transferred here.

The said appeal in the replevin case was determined at the last October term of the Supreme Court, affirming the the judgment of the circuit court of Bates county.

By that decision the right of plaintiff to have the possession of this note and his title thereto were established, on the ground that the said conditions had been fully complied with by plaintiff. So that the only question presented by this record for our determination is, whether or not the plaintiff had the right to institute this action during the pendency of said appeal.

I. The judgment and decision in the action of replevin established the fact that the conditions on which the plaintiff was entitled to demand payment of the note sued on were fully performed prior to the first day of January, 1881. The note thereupon became absolutely due and payable, and the plaintiff was entitled to both the possession and payment without more. And although the note was then in escrow, “the liability of the party commenced as soon as the event happened or the conditions were fulfilled, without actual delivery by the depositary to the promisee.” — 1 Danl. Neg. Inst., sect. 68, citing Couch v. Mesker, 2 Conn. 302 ; and Taylor v. Thomas, 13 Kan. 217 .

In the first named case Chief Justice Swift said : “ The efficacy of the note depended solely on the conditions on *493 which it was delivered as an escrow. Of course it operated when these were performed, and although it was not formally delivered over by the depositary to the plaintiff, yet it took effect in his hands the instant the conditions were performed, without any formal delivery on his part.” And in the latter case, Brewer, J., said : “This was an action on a promissory note. The note was originally placed in escrow, to be delivered on certain conditions. It had never been delivered by the depositary, hence it is claimed, by the defendant that no action could be maintained upon it. This is an error. When the conditions of the escrow are performed, the title vests in the payee. The title does not hinge on the action of the depositary, but upon the performance of the conditions. Though it was not formally delivered over by the depositary to the plaintiff, yet it took effect in his hands the instant the conditions were performed, without any formal act of delivery on his part.”

With or without the replevin suit, therefore, the plaintiff on performance of the conditions became entitled to* recover this debt. The only suggestion against the right of action by plaintiff, after the first day of January, 1881, is that the plaintiff did not have the actual possession of the instrument evidencing the contract. By section 3560, Revised Statutes, it is provided that when a petition is founded on an instrument of writing charged to have been executed by the other party, and not therein alleged to be lost or destroyed, the same shall be filed with the petition. It was doubtless the impression that this provision of -the practice act presented an insuperable obstacle to the maintenance of a direct action against the makers of the notes, that induced the plaintiff to take recourse to the action of replevin in the first instance. But this section of the statute has been construed by the Supreme Court to apply to such obligations as are executed only by the party sued. It does not apply to contracts signed by both parties, and deposited with a third party. — Camp bell v. Wolf, 33 Mo. 459 ; Bowling v. Hax, 55 Mo. 448 .

*494 While it is true that the note in. question was signed 'by the defendants only, yet the contract made simultaneously with it and attached to it was signed by both parties. This contract was expressive of the actual consideration of the note, and specified the terms on which the debt was to become due and demandable. It was so much a part of the note that the two made one instrument, so that they are to be treated in fact and law as one contract. — 2 Par. on Cont., 7 ed., 503; Lewis v. Penn Mut. Life Ins. Co., 3 Mo. App. 372 ; Brownlee v. Arnold , 60 Mo. 79 ; 1 Danl. Neg. Inst., sects. 150 and 156; Harvey v. Effinger, 37 Miss. 552 . As such they must be taken and construed together. The note and appended contract or conditions were treated by the parties as an entirety inseparable and dependent, and so they were placed as one contract with the depositary. In such a case we are of opinion that the plaintiff could have instituted this action without filing the instrument : sued on, and on the trial have compelled its production in evidence by a subpoena duces tecum. — Bowling v. Hax, supra.

.II. The only remaining question to be considered is, did the pendency of the appeal operate so as to work a suspension of the plaintiff’s right of action on the note until the termination of the contest in the Supreme Court %

At common law a writ of error or certiorari, from the instant of its allowance, operated as a supersedeas, and annulled all subsequent proceeding taken, without any bond or other security. — Freeman on Executions, sect. 532. But this matter is now. regulated entirely by statute, and judgments of the lower courts are in no manner affected by an appeal or writ of error, except in so far as they are superseded by appeal bonds or bonds of supersedeas on writ of error.

By section 3713, Revised Statutes, it is provided that an :appeal “shallstay the execution,” on the appellant giving bond, with approved security “in a penalty double the amount of whatever debt, damages and costs, have ■ been recovered by such judgment — and the costs and *495 damages that may be recovered in any appellate court upon the appeal, conditioned, that the appellant will prosecute his appeal with due diligence to a decision in the appellate court, and shall perform snch judgment as shall be given by such court, or such as said court shall direct the circuit court to give, and if the judgment of such ■court, or any part thereof, be affirmed, that he will comply with and perform the same; as it may be affirmed, and will pay all damages and costs which may be awarded against the appellant by an appellate court.”

The bond in said appeal was only for the sum of eight hundred dollars. It was manifestly designed by the parties and the circuit court granting the appeal, to -cover only the matter of costs awarded against the appellants. It would be absurd to hold that this bond operated as a supersedeas of the right of action on the notes involved in that controversy, amounting as they did, in the aggregate, to the sum of $13,147.50. What protection would it have afforded the plaintiff, if, during the pendency of the appeal, the makers of the notes had become insolvent, or quit the state ?

On the affirmance of the judgment on that appeal, the only judgment which the Supreme Court could render against the appellants would be that they pay the costs .adjudged against them by the circuit court and the costs of the appeal. The appellee being already in possession of. the notes, there could be no judgment for their ■delivery to the plaintiff. In fact the appellants never had possession of the notes.

The action being in replevin, in which the right of ■naked possession to the property sued for was involved, it was necessarily brought against Tygard the actual holder of the notes. — Wells on Replevin, sect. 134; Davis v. Randolph, 3 Mo. App. 454 . It is further worthy of ■observation that the statute only provides for a “ stay of ■execution.” As Tygard took no appeal, and of course made no appeal bond, had he been in possession of the notes at the time of the rendition of judgment, execution could have gone against him therefor. But the notes *496 were then in the possession of the plaintiff, and, it having elected to hold them, the execution operated only as a stay of execution against the appellants for the costs.

Without reviewing the authorities, it is sufficient to say, that the general rule in this respect, seems to be this: If the case taken by appeal is to.be re-tried in the appellate court, de now, as upon original process, and it is to settle the matter involved by its own judgment, to be enforced on its process, then the appeal — like that from a justice of the peace or probate court — vacates the judgment pro tem. of the inferior court. But if the appeal is in nature of the ancient writ of error or certiorari, carrying up the case to the superior court for review only of the errors of the trial court, and the questions for adjudication are, shall the judgment of the lower court be affirmed or reversed, modified or remanded for further trial or special procedure, the appeal does not vacate or suspend the judgment of the inferior court, nor bar an action on the judgment. —Banks v. Wheeler, 28 Conn. 433 -441-2; Rogers v. Hatch, 8 Nev. 39 , and citations. In illustration: In Randler v. Randler ( 67 Ind. 434 ), there had been a partition suit between the parties, in ■which certain lands had been assigned to the plaintiff as dower, from which the defendants appealed, giving an appeal bond in the sum of $500.00. During the pendency of the appeal, the plaintiff brought action in ejectment ■against the defendants to recover the possession of this assigned land. The pendency of said appeal was interposed as a defence. The defence was overruled. The court said: “The only effect of the filing of the appeal bond on the appeal to this court from the judgment of the circuit court in the partition suit, was to stay execution upon ■the judgment for costs, until such appeal was determined, and that in all other respects the judgment, until an- ■ nulled or reversed, was binding upon the parties thereto, as to every question directly decided therein,” — citing many decisions in support. — See Freeman on Judgments, sect. 328.

The judgment, in the action of replevin, awarding the *497 custody of the notes to plaintiff, required no further execution than its own terms.' It was self-executing, except as to the costs, which were stayed by the appeal bond.

This rule might not apply, as already intimated, in an equitable proceeding, where the decree is appealed from and bond given. For there the whole record is taken before the appellate court to be re-tried on the merits of the controversy, with jurisdiction in the appellate court to proceed to render judgment ex eqxio et tono. — The City of Racine v. Burnes, 6 Wis. 472 .

We are of the opinion that the defence interposed by defendants is not sustainable. The judgment of the circuit court should, therefore, be affirmed.

The other judges concurring,

it is so ordered.