State Ex Rel. Currier v. Falkenhainer

This is a proceeding by mandamus brought in this court to compel the respondent, a judge of the Circuit Court of the City of St. Louis, to file and consider an affidavit touching the qualifications as surety of the person therein named, on an appeal bond, and to require such court, if said bond is found otherwise sufficient, to approve same.

In a judgment rendered in said circuit court in favor of one Duncan S. Werth and against relators and others, the relators appealed to this court, the amount of the appeal bond was fixed and time was given within which to submit testimony as to the sufficiency of the sureties. Within the time fixed the relators gave counsel for the plaintiff notice that they would on a day named present to the court for its approval their appeal bond. Said notice contained the names of the proposed sureties, with their places of residence and *Page 207 vocations, in conformity with rule numbered forty of said circuit court, which is as follows:

"Rule 40. In case of appeal from this court, it shall be the duty of any party in whose favor bond is to be given to examine the persons proposed as sureties or otherwise to satisfy himself of their responsibility. To this end the party offering such bond shall give the adverse party at least one day's notice in writing of the time when the persons proposed as sureties will be present in court for examination, and shall in such notice state the names, residence and occupations of such persons."

After the signing of said bond by the sureties and the giving of said notice, but before the day fixed for the presentation of the bond to the court, Stephen L. Smith, one of said sureties, became ill with an infectious disease, was removed to a hospital and could not be present in court at the time of the presentation of the appeal bond. Relators secured a sworn statement from him as to his age, residence and the description and value of his personal and real property over and above his liabilities. This affidavit was filed with the bond for the consideration of the court. An examination was made of the other two sureties as required by Rule 40. The court declined to consider the affidavit of the surety, Smith, as conforming to the requirements of said rule and held that the showing as to the property of the other two sureties over and above their liabilities did not authorize the approval of the bond, the amount of which had been fixed at $4000.

The discussion of other facts of more material relevance than the construction of the court rule quoted will suffice to determine the matter at issue. In passing, it may not be inappropriate to say that while this rule, in its terms, is not violative of the Constitution or our code of procedure, where, within a reasonable exercise of the court's discretion, another method than a literal conformity therewith will better serve to determine the pecuniary qualifications of sureties, without lessening the *Page 208 integrity of the judgment, that course should be pursued; and no hard and fast adherence to the letter of the rule should regulate the examination of the trial court; but, while protecting the integrity of the judgment, it should see that the appellant is denied no opportunity to establish his right to the suspensive effect of a bond pending the appeal. In other words, that part of the rule requiring the personal presence of a proposed surety in court for examination should be held to be directory when such a holding will add to the opportunity of the appellant to secure a stay pending an appeal without proving inimical to the rights of the prevailing party. A rule should never be so interpreted or a law so construed as to work a denial of justice.

But, considering, as we premised, the more relevant facts, we find that the trial court carefully examined the other two sureties and found the aggregate amount of their property not sufficient to authorize an approval of the bond within the requirements of the statute (Sec. 2042, R.S. 1909).

That no injustice might be done to the appellants, the relators herein, we have examined the proof offered, including the affidavit to establish the pecuniary qualifications of the proposed surety, Smith. While the trial court rejected this testimony on account of the nature of same, which was a technical error, appellant was not thereby injured, as the proven value of this surety's property, with that of the others, was insufficient to afford that protection to the plaintiff which the law contemplates to authorize an approval of the bond. Aside, therefore, from the error noted, which, for the reasons stated, may be disregarded, the exercise of the court's discretionary power was necessary to a determination of the matter submitted, viz., the sufficiency of the sureties.

The statute (Sec. 2042) only defines the number of the sureties and fixes the amount of the bond, leaving the sufficiency of the former, so far as concerns their pecuniary qualifications, to the judgment and discretion of the trial court. Where, as here, that finding, after an oral *Page 209 examination of the sureties, is adverse to their sufficiency, we will not disturb the same, especially so where our review of the facts confirms the conclusion that the decision was a rightful one. Where discretion has been exercised by a court, as in the instant case, we have refused to afford relief in the manner here sought to be invoked except where there has been a palpably arbitrary exercise of the discretion in the very face of the law and of the conceded facts. There is no room for the exception under the facts at bar. [State ex rel. Clark v. West, 272 Mo. l.c. 314 and cases; 26 Cyc. p. 217 and notes; 2 R.C.L. top page 116.]

From which it follows that our alternative writ should be quashed and it is so ordered. All concur; Woodson, J., absent.