Bernecker v. Miller

Bliss, Judge,

delivered the opinion of the court.

Respondent obtained a judgment against defendant Miller in an action for unlawful detainer, before John Bray, justice of the peace, for dispossession, rents, etc. He made affidavit and filed bond for appeal; but, failing to bring up his transcript, the plaintiff produced it and moved to dismiss the appeal, which was done, and the action of the court was sustained by this court. (Bernecker v. Miller, 37 Mo. 498 ). Afterward the justice issued a writ of restitution and execution, for damages and costs, and for rents and profits. Defendant Koehler paid $77.55 upon the execution, which nearly covered the money demand on its face, but there was no payment of rents, etc., and the return of the sheriff showed that the amount could not be made of Miller. The plaintiff then brings this action upon the appeal bond executed by both the defendants, and alleges as breach that Miller failed to prosecute his appeal with effect, that the appeal was dismissed, etc. The Circuit Court gave him judgment for $800, the penalty of the bond, with execution for the damages found for the plaintiff, amounting to $278.70, and for costs; and defendants appeal to general term, and thence to this court.

*128 The declarations of law asked by defendants, the facts having been submitted to the court, were, first, that “upon the bond read in evidence by the plaintiff he can not recover the rents and profits, damages and costs, recovered on the trial before. Justice Bray;” and, second, that “ on the petition, answer, and evidence, the plaintiff can not recover;” both of which were refused by the court.

As there was no -judgment in this case in the appellate court for “rents and profits, damages and costs,” the appeal having been simply dismissed, the defendants claim — and by these declarations raise the question — that they are not liable for such rents, etc., upon the bond, and that the allegations of the petition that Miller failed to prosecute his appeal with effect, that it was dismissed, etc., do not show such a breach as will cover this liability.

There are several conditions to the obligation of the bond: 1. That the appeal shall be prosecuted with effect and without delay. 2. That appellant shall not commit waste or damage. 3. That he shall pay the rents and profits, etc., that may be adjudged against him. 4. That he shall otherwise abide by the judgment of the appellate court. The plaintiff relies upon the breach of the first condition. The appeal was not prosecuted with effect, for no steps were taken by Miller, after filing the bond, to perfect or prosecute his appeal. -This condition having been broken, the liability to a judgment for the penalty is complete, and the only question is one of damages. Are the defendants liable as well for rents and profits, not having prosecuted their appeal, as they clearly would have been by the express terms of the bond, had judgment been rendered in the Circuit Court against the appellant for such rents, etc. ? This question is answered if we will consider whether the plaintiff was deprived of the use of the property, of his right to restitution, by the appeal. If so, the damage arising from such deprivation is the result of the appeal and of giving the appeal bond; and, the condition of the bond being broken, the obligee should be entitled to execution for such damages.

Judgment is affirmed.

The other judges concur.