
    Thomas E. Sublette, Respondent, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    St. Louis Court of Appeals,
    April 21, 1896.
    Judgment, Action on: appeal with supersedeas bond. An action can not be maintained on a judgment while an appeal therefrom with superseaüeas bond is pending in the appellate court; nor will it matter in such casé that the appellant has failed to file his bill of exceptions in the cause within the time allowed therefor. And such appeal being shown, its pendency will be presumed in the absence of evidence to the contrary.
    
      Appeal from the St. Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge.
    Reversed and remanded.
    
      George S. Grover for appellant.
    (1) The judgment here sued on was vacated by defendant’s appeal to the circuit court of Adair county, Missouri. Earl v. Collins, 89 Mo. 263; Williams v. 
      
      Lewis, 47 Mo. App. 657. (2) The defendant having perfected an appeal to the supreme court of Missouri in this cause, no action can be maintained upon the original judgment, even if said judgment was alive, until the cause has been finally disposed of in the supreme court of Missouri. Ladd v. Cousins, 35 Mo. 513; DeKalb Co. v. Rixon, 44 Mo. 341; Burgess v. O’ Donoghue, 90 Mo. 299.
    
      D. C. Taylor and R. R. Stevens for respondent.
    The circuit court never acquired jurisdiction of the subject-matter by reason that the appeal allowed by the justice of the peace was a mere nullity, no affidavit for appeal having been filed by the appellant and no bond given. Unauthorized appeals are mere nullities. Appeals without bonds are unauthorized. Cochran v. Bird, 2 Mo. 141; Rayton v. Rope, 3 Mo. 53; State v. Steamboat Con., 10 Mo. 513; Price v. Raised, 3 Mo. 461; Ciesing v. Schowengerdt, 24 Mo. App. 554; Green v. Gastello, 35 Mo. App. 127; Whitehead v. Cole Rodgers, 49 Mo. App. 428; Devon v. Stoeckler, 49 Mo. App. 547; Kelm v. RemJcler, 49 Mo. App. 664; Long v. Bollen Coal Co., 56 Mo. App. 605; State ex rel. v. Engleman, 106 Mo. 628.
   Biggs, J.

On the tenth day of April, 1883, the Wabash, St. Louis & Pacific Railroad Company owned and operated a railroad in Adair county in this state. On the day mentioned it leased its roadbed and the appurtenances to the defendant. Subsequently, to wit, on the twenty-first day of May, 1883, and while the defendant was operating the road, an animal belonging to plaintiff was run over and struck by a train of cars on the road. The accident occurred in Polk township in Adair county. For this the plaintiff brought suit for damages before a justice of the peace of the township where the animal was killed, and on the twenty-second of September, 1883, he recovered a judgment by default against the defendant for $125 and costs. The present action, which was instituted at the May term, 1894, of the circuit court of St. Louis county, is based on that judgment, which the plaintiff avers has not been paid.

As defenses to the action the defendant insists, first, that the judgment sued on had been vacated by an appeal to the circuit court; second, that the defendant had taken an appeal from the judgment of the circuit court, and that the cause had not been determined or in any manner disposed of in the supreme court; and, third, because there had been no revivor of the justice’s judgment.

The cause was submitted to the court without a jury, and the judgment was for the plaintiff. No instructions were asked or given, and no objections were made or exceptions saved to the introduction of evidence. The defendant has appealed, and its contention is that, under the conceded facts, the judgment ought to have been for it.

We need only discuss the second defense. The transcript of the proceedings before the justice recites that five days after the entry of the judgment the defendant moved to set aside the default, which the justice refused to do, and that, thereupon, the defendant filed its affidavit and bond for an appeal to the circuit- court, and that the appeal was allowed. The attorney, who represented the defendant, had formerly represented the Wabash, St. Louis & Pacific Railway Company, and in making the affidavit and bond he designated the defendant in the action as the Wabash, St. Louis & Pacific Railway Company instead of the defendant here. The record went to the circuit court in that condition, where, on motion of plaintiff, the cause was stricken from the docket. In due time the defendant filed a motion to set aside the order striking the cause from the docket, which the circuit court overruled. The record then recites that the defendant’s affidavit and appeal bond were filed and an appeal allowed to the supreme court, and that defendant have sixty days after the expiration of the term within which to file a bill of exceptions. These proceedings were had at the December term, 1883, of the circuit court. In making the final entries the clerk also made the mistake of naming the Wabash, St. Louis & Pacific Railway Company as the defendant in the action. This mistake was corrected by nunc fro tunc entries at the October term, 1894, of the circuit court. There is nothing in the record to show that a bill of exceptions was filed, or that the appeal has been disposed of by the supreme court.

The trial judge adopted the view, as indicated by a memorandum filed by him, that, because the defendant had failed to prove that the bill of exceptions was filed and what disposition (if any) had been made of the cause in the supreme court, it should be assumed that the defendant had failed to perfect his appeal by filing a bill of exceptions, or that the cause had in some way been finally disposed of in the supreme court. We can not agree to this. The record recites that the defendant asked for an appeal to the supreme court; that it filed the necessary affidavit, and presented an appeal bond which was approved by the court, and that thereupon the appeal was allowed. This divested the circuit court of further jurisdiction of the cause, except to correct mistakes in its record so as to correctly express the history of the proceedings prior to the appeal (DeKalb County v. Hixon, 44 Mo. 341), and vested it in the supreme court. The failure to file the bill of exceptions could in no way operate against the appeal, or disturb the jurisdiction of the supreme court. The defendant having shown that an appeal was allowed, it devolved on the plaintiff to show that the appeal had been finally disposed of in the supreme ■court, and that,the result was favorable to him. If, in point of fact, the appeal has not been prosecuted as required by law, or if by some mishap the cause has been overlooked in the supreme court (one of which we assume to be true) the plaintiff has his remedy. In the one case, he should move for an affirmance for failure to prosecute; in the other, he should see to it that the cause is put upon the docket of the supreme court. In either event it is evident that the present action has been prematurely brought.

We do not deem it necessary to discuss the other questions. The judgment of the circuit court will, therefore, be reversed and the cause remanded.

All the judges concur.  