State ex rel. Schonhorst v. Henning , 55 Mo. App. 579 ( 1893 )

Rombauer, P. J.

The appeal in this ease was taken to the supreme court under the mistaken view that the suit involved the title to real estate, and that a state officer was a party therein. The supreme court ordered a transfer of the cause to this court, holding that this court had exclusive cognizance thereof, and that it had no jurisdiction therein.

These preliminary observations become necessary to determine the exact status of the parties now before us on this record. It would seem from some memoranda found in the papers that in January, 1892,' an attempt was made in the supreme court to suggest the' death of James Cullinane, one of the defendants, ;bilt .as that court never had any jurisdiction of the causé, ..such suggestion in fact was not made to the proper court. At the October term, 1892, the death of the relator Philip Schonhorst was suggested in this court, and at the March term, 1893, Catherine Schonhorst, his executrix, entered her appearance in the cause, and a summons was issued at her instance to bring in the defendant Henning, and William Cullinane, executor of the defendant James Cullinane. This was the first information conveyed to this court that J ames Cullinane was dead. No notice was taken as to the remaining defendant, J. P. Schulte, and, as he never was properly brought into this court on the revived action, the cause against him will have to be dismissed.

Proceeding to consider the' merits of the appeal, we refer to the fact that the cause is the same which was heretofore before this court on a former appeal taken by the plaintiff’s testator. (State ex rel. v. Henning, 26 Mo. App. 119). The action is one on an official bond of a constable against him and his sureties. The breach charged is the constable’s failure to execute a writ of restitution in an unlawful detainer proceeding. The first trial of the cause resulted in a judgment for the defendants, which judgment we reversed, holding that upon the conceded facts the plaintiff was bound to recover. The judgment upon the last trial was in the plaintiff’s favor, and the complaint made is that such judgment is erroneous on the conceded facts.

There is no pretense that the evidence upon the last trial was different from the evidence on the preceding trial, except in so far as the defendants offered some records in evidence, which their counsel now claims in his brief should have been admitted as evidence of res judicata. The records are not in the transcript, but their general effect is stated in a brief filed by counsel. But, even if such records were in the transcript, it would not change the result. No plea of former adjudication was made by the defendants, and the records would have been inadmissible, if such plea had been made, as they in no way bore on the plaintiff’s right of recovery in this action. The judgment was, therefore, the only one which the court could have rendered.

It is ordered that the case be dismissed against J. P. Schulte, and that the judgment be affirmed against the other defendants.

All the judges concur.