Opinion
No. 28712.
July 14, 1953.
Francis M. O'Brien and Chas. E. Thompson, St. Louis, for relator.
Jules Q. Strong, St. Louis, for respondent.
This is an original action in prohibition against Judge Nangle of the Eighth Circuit Court, and the judges that succeeded him in Division No. 1 of that circuit have also joined as respondents.
The case out of which this stems was a suit in unlawful detainer originating in the magistrate court. Fannie Mohr was the complainant in that action and she recovered a judgment for one thousand dollars as damages and double rent as provided by law against the defendant. Mode O'Day Frock Shops of Hollywood, Inc. This judgment was entered on March 12, 1952, and on the same day the defendant appealed to the circuit court and entered into the required recognizance. On the day following Fannie Mohr filed a notice of appeal but filed no bond as provided by Section 534.410, RSMo 1949, V.A.M.S.
Thereafter the defendant dismissed its appeal and moved the court to certify the dismissal to the magistrate in accordance with Section 534.530, RSMo 1949, V.A.M.S. At this point Fannie Mohr requested the circuit court to proceed with the case upon her appeal. The defendant raised the objection that Fannie Mohr had no appeal properly before the court in that no bond had been filed and asserted that the court was without jurisdiction to proceed after the defendant's appeal had been dismissed. The court then continued the case to permit Fannie Mohr to file a bond and ordered that the cause proceed to trial thereafter. At this point prohibition was sought and our provisional rule was issued upon the petition of the Mode O'Day Frock Shops against the circuit judge.
It is the contention of the respondent that prohibition is not the proper remedy under the facts stated and that if the relator is entitled to any relief it is by appeal, while the relator maintains that the court was divested of any jurisdiction to proceed with the case after its appeal had been dismissed and that under such circumstances prohibition is the proper remedy. It is quite true that prohibition cannot perform the functions of appeal as stated in State ex rel. Mills v. Calhoun, Mo.App., 234 S.W. 855, and State ex rel. St. Louis Cooperage Co. v. Green, Mo.App., 92 S.W.2d 930. It has, however, been consistently held that prohibition is the proper remedy to prevent a court from making an order which it has no jurisdiction to make. Kyger v. Koerper, 355 Mo. 772, 207 S.W.2d 46; State ex rel. Riggs v. Seehorn, 344 Mo. 186, 125 S.W.2d 851; State ex rel. Taylor v. Nangle, 360 Mo. 122, 227 S.W.2d 655; State ex rel. St. Louis Cooperage Co. v. Green, supra.
The statutes governing procedure in actions in unlawful detainer constitute an exclusive and special code. It is provided in Section 534.400, RSMo 1949, V.A.M.S., that no appeal from a magistrate shall be allowed unless a sufficient recognizance be filed. Section 534.410 provides that when the complainant appeals a bond for costs shall be filed. Section 534.430 provides the form of the bond which an appealing complainant shall use. The other sections of Chapter 534 cover in detail the procedure to be followed in each step of the action, and we must look exclusively to this statute to determine the question before us. Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92; McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349.
Section 534.500 provides that "where it shall appear that the amount or security in a recognizance is insufficient, or for any other substantial defect," the court may order a new recognizance. This, however, is no aid to the respondent for no question of insufficiency or defect was before the court for there was no bond.
In discussing a situation similar in all respects except that the defendant was the appellant, the Kansas City Court of Appeals in Cusack v. Green, 252 S.W.2d 633, 634, stated:
"In affording the defendant a right of appeal in cases of forcible entry and unlawful detainer, the statutes prescribe the requirements therefor, an essential one of which is that he furnish an appeal bond of the nature and in the general form provided."
It appears therefore that the complainant failed to comply with an essential step provided by the statute and in effect had taken no appeal. The respondent here cites us to Hamilton v. Jeffries, 15 Mo. 617 and Nelson v. Nelson, 30 Mo.App. 184, in seeking to establish the court's right to order the filing of a bond. Both of these cases deal with a defective attempt by appellants to comply with the statute and are no authority for the proposition that the court may order a bond filed where none had been filed.
After the defendant below, the relator here, had dismissed its appeal there was nothing before the circuit court for the attempted appeal of the complainant was a nullity. There was nothing further for the circuit court to do but to certify the dismissal to the magistrate in conformity with the statute and any other orders were in excess of its jurisdiction.
For these reasons, it is the recommendation of the Commissioner that the provisional rule in prohibition be made absolute.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the Court.
The provisional rule in prohibition is accordingly made absolute.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.