ON MOTION FOR REHEARING. A motion for rehearing has been filed by plaintiffs (respondents) in which, along with other matters, they question the propriety of our directing the lower court to dismiss their appeal *Page 735 from the judgment of the justice without first affording them a reasonable opportunity, after our mandate goes down, to file a bond in a sum sufficient to secure the payment of the judgment and the costs of the appeal to the lower court.
We are not to be understood as having held that the lower court did not derive and acquire jurisdiction over the appeal, even though the purported statutory bond which plaintiffs had entered into before the justice was insufficient for the reasons stated in our principal opinion. It is true that in strictness the justice should not have allowed the appeal until a sufficient bond had been filed, but when he did allow it, and his return was filed in the lower court, that court became "possessed of the cause", and acquired initial jurisdiction for the purpose of the trial anew without regard to any error, defect, or other imperfection in the proceedings had before the justice. [Sec. 2352, R.S. Mo. 1929 (Mo. Stat. Ann., sec. 2352, p. 2453); Biederman Furniture Co. v. Isbell (Mo. App.), 102 S.W.2d 746; New England Nat. Bank v. Corbin (Mo. App.), 239 S.W. 591; G.S. Limes Son v. Wright (Mo. App.), 208 S.W. 281; Standard Historical Soc. v. Gillespie (Mo. App.), 111 S.W.2d 954.]
But though the lower court did acquire jurisdiction of the case upon the return of the justice being filed with it, that did not mean that the right was foreclosed to defendants in the lower court to raise the point of the insufficiency of the bond. To the contrary, they were entitled to move (as they did) for the dismissal of the appeal upon the ground that the bond as given was insufficient, whereupon plaintiffs had two courses open to them — either to stand upon the bond they had already given, or else, before the motion to dismiss was determined, enter into such recognizance as they ought to have entered into before the allowance of the appeal, in which latter event their appeal could not have been dismissd regardless of the insufficiency of the original bond. [Sec. 2353, R.S. Mo. 1929 (Mo. Stat. Ann., sec. 2353, p. 2455); New England Nat. Bank v. Corbin, supra; Biederman Furniture Co. v. Isbell, supra.]
Plaintiffs chose the first of such alternatives, and in so doing took the chance of having the bond declared insufficient upon a subsequent review of the court's ruling, which was in nowise conclusive upon the question of the sufficiency of the bond.
But counsel suggests that defendants should be held to have waived the point by appearing to the merits of the case after their motion to dismiss the appeal had been overruled. While there are certain cases which do so hold, apparently upon the theory that the question is one of jurisdiction of the parties, we think that the tenor of the better reasoned cases is all to the contrary. Actually the question raised by the appellee's motion to dismiss for want of a recognizance, or because the recognizance given is defective or insufficient, is not one of whether the circuit court has jurisdiction either of the *Page 736 subject matter or of the parties, but instead is one of whether it has the right to exercise the jurisdiction which it acquired upon the return of the justice being filed with it. [Donohue v. Southwestern Surety Ins. Co., 281 Mo. 267, 219 S.W. 930; Bader v. Jones, 119 Mo. App. 685, 691, 96 S.W. 305.] While the appellee may indeed waive such point by proceeding to trial on the merits without having first moved to dismiss the appeal, yet if he does file his motion to dismiss, he does all that Section 2353 requires of him, and if the court improperly denies his motion, the error is subject to be reviewed and corrected on appeal. [Bader v. Jones, supra; New England Nat. Bank v. Corbin,supra; Welsh v. Hannibal St. J.R. Co., 55 Mo. App. 599; G.S. Limes Son v. Wright, supra.]
As to the point that plaintiffs should in any event be afforded a reasonable opportunity to correct the insufficiency of their bond before the order is entered dismissing their appeal, the obvious answer is that they had such an opportunity after the motion to dismiss was filed, but elected not to avail themselves of it. Defendants have rights under Section 2353 which are no less to be observed than are the rights of plaintiffs, and now that the motion to dismiss has been determined, it is too late for plaintiffs to enter into such a recognizance as they ought to have entered into before the allowance of the appeal by the justice.
It follows that respondents' motion for a rehearing should be overruled, and the Commissioner so recommends.