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stitution and laws of the State. As, in our opinion, all the Federal questions presented by the record were rightly decided by that court, it is not our province to consider these assignments. Murdock v. City of Memphis, 20 Wall. 590. We find no error in the record.
KOUNTZE V. OMAHA HOTEL COMPANY.
OMAHA HOTEL COMPANY v. KOUNTZE.
1. An appeal bond in an ordinary foreclosure suit in a court of the United
States does not operate as security for the amount of the original decree ; nor for the interest accruing thereon pending the appeal; nor for the balance due after applying the proceeds of the mortgaged premises; nor for the rents and profits, or the use and detention of the property pending the appeal: but only for the costs of the appeal, and the deterioration or waste of the property, and perhaps burdens accruing upon it by non-payment of taxes, and loss by fire if it be not properly insured. Quære, Is its mere
depreciation in market value any cause of recovery on the bond. 2. An appeal bond in such a suit, instead of following the statutory requirement,
“that the appellant shall prosecute his appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs,” superadds the words that he shall "pay for the use and detention of the property covered by the mortgage in controversy during the pendency of the appeal.” In an action on the bond, – Held, that these words must be rejected, and the bond construed as having its ordinary and proper legal effect, the judge taking it having no right to exact such an addition to the condition of an
appeal and supersedeas. 3. This case distinguished from those in which official bonds, and bonds given to
the government for the purpose of enjoying some office or privilege, have been sustained as co
at common law.
ERROR to the Circuit Court of the United States for the District of Nebraska.
The case is stated in the opinion of the court.
Mr. John I. Redick, Mr. George E. Prichett, and Mr. Jeremiah S. Black, contra.
MR. JUSTICE BRADLEY delivered the opinion of the court.
This is an action on an appeal bond given for supersedeas of execution on a decree of foreclosure rendered by the Circuit
Court for the District of Nebraska, and appealed to this court and affirmed; and the question is as to the measure of damages to be recovered on said bond.
The foreclosure suit was brought to raise the amount due on certain bonds of the Omaha Hotel Company out of certain land and premises situated in the city of Omaha, which bad been mortgaged by the company to secure the payment thereof. A decree was made on the 8th of May, 1875, by which it was ordered that the mortgaged premises be sold and the proceeds applied to pay the debt, after paying costs of sale and insurance and taxes accruing in the mean time. The defendants appealed, and, to obtain supersedeas of execution, gave the appeal bond which is the subject of the present controversy. The bond was in the penalty of $50,500, and after reciting the decree and appeal was conditioned as follows: “Now, the condition of the said obligation is such that if the said Omaha Hotel Company shall duly prosecute said appeal to effect, and pay said Jeptha H. Wade, James W. Bosler, Thomas Wardell, John A. Creighton, administrator of the estate of Edward Creighton, deceased, Andrew J. Poppleton, Augustus Kountze, Herman Kountze, and Henry W. Yates, their executors, administrators, or assigns, for the use and detention of the property covered by the mortgage in controversy in this suit, during the pendency of said appeal, and the costs of the suit, and just damages for delay, and costs and interest on said appeal, if it fails to make good its plea, this obligation shall be void ; otherwise to remain in full force and virtue.”
The decree being affirmed and the premises sold, the proceeds were found to be insufficient to satisfy the debt, to the amount of $88,480.85; and for this deficiency a decree was rendered against the Omaha Hotel Company, and an execution issued, which was returned unsatisfied.
Thereupon the present suit was brought on the appeal bond, and the plaintiffs by their petition claimed the entire penalty and interest on the facts above stated and on the ground that the company was insolvent, that, pending the appeal, the property had depreciated in value $30,000, and that the use and detention of it was worth $30,000 more. The defendants, in their answer, averred that they had kept the property in good
repair at a large expense, had paid all the taxes upon it, and had kept it insured for the benefit of the bondholders to the amount of $100,000; and that instead of depieciating, it was worth much more when the sale was made, than it was at the time of the original decree. The jury, by a special verdict, found that the rental value of the property, pending the appeal, with interest to the time of trial, was $44,838.67, and that the expenses paid by the defendants for taxes, insurance, and repairs, with interest thereon, was $26,082.71; that the value of the property in May, 1875, was $92,500, and in April, 1878, $139,000; that in May, 1875, it would have sold at master's sale for $62,000 [whereas it sold in 1878 for $120,000]; that the interest on the decree pending the appeal was $58,870.25 ; and that the penalty of the bond, with interest from July 11, 1878, to the time of the trial, amounted to $57,750; and that the costs of the original suit unpaid by the defendants was $530.
The court rendered judgment in favor of the plaintiffs for $19,735.93, being the difference between the rental value of the property pending the appeal, and the sums expended by the defendants for taxes, insurance, and repairs, allowing interest on both sides; with the addition of the item of $530 costs unpaid by the defendants, and interest from the time of trial to the date of the judgment.
Both parties brought writs of error.
The plaintiffs now contend that they ought to have had judgment for the entire penalty of the bond, because, first, the bond expressly provides that the Omaha Hotel Company shall pay for the use and detention of the property pending the appeal, as well as costs and just damages for delay, which greatly exceeds the penalty ; secondly, if the bond is to be limited in effect to the terms of the statute prescribing a bond, the damages are still greater than the penalty, its legal effect being to secure, to the extent of the penalty, 1, payment of the whole decree beyond what may be produced by the sale of the property ; 2, the interest accruing pending the appeal, which alone exceeds the penalty ; 3, the value of the use and detention of the property pending the appeal.
The defendants contend that judgment should have been given for them.
The appeal bond sued on in this case was given under the requirement of sect. 1000 of the Revised Statutes, which declares that every justice or judge signing a citation or any writ of error shall, except in cases brought up by the United States, &c., take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. Sect. 1007 gives the effect of a supersedeas to a writ of error where such a bond as above described is given, and the writ is sued out and filed in proper time. Sect. 1010 declares that, where judgment is affirmed, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs, at its discretion. Sect. 1012 declares that appeals from the Circuit Courts, &c., shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error.
These enactments are substantially a reproduction of like clauses in the Judiciary Act of 1789, as regards writs of error, and of the act of 1803, as regards appeals. The mate rial words are the clause in the bond which declares that the plaintiff in error (or appellant] shall prosecute his writ to effect, and, if he fail to make his plea good, shall answer all damages and costs." The scope and effect of this phrase, as applied to cases like the present, are the principal point in controversy. The bond sued on bas an additional phrase, not required by the law, the effect of which will be separately considered.
By the common law a writ of error, without any security, was of itself a supersedeas of execution from the time of its allowance or recognition by the court to which it was directed ; and even before, if the defendant in error had notice of it; or, in the Common Pleas, from the time of its delivery to the clerk of the errors of that court, whose business it was, amongst other things, to prepare the returns. 1 Tidd's Pract. 530, 1145; Impey's Pract. C. P. 16; Petersd. Abr., tit. Error, I. (H. a.). The presentation of the writ issuing from the Supe
rior Court stopped all further proceedings except such as were incidental to a compliance with its command to certify the record. But as writs of error came to be sued out for the purpose of delay, various acts of Parliament were passed, requiring security in certain cases, in order that the writ might operate as a supersedeas. First, without referring to a statute in the time of Elizabeth, the statute of 3 James I., c. 8, declared that no execution should be stayed or delayed, upon or by any writ of error, or supersedeas thereon, for the reversing of any judgment in debt upon a single bond, or a bond with condition for the payment of money only, or in debt for rent, or upon any contract, unless the plaintiff in error, with two sufficient sureties, should first be bound to the plaintiff in the judgment, " by recognizance, in double the suin recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the said judgment should be affirmed, or the writ of error non-prossed, all and singular the debts, damages, and costs, adjudged upon the former judgment; and all costs and damages to be awarded for the delaying of execution.” This statute was specific as to the cases in which bail in error (as it was called) was required, and it was frequently held that it could not be required in any other cases. 2 Sellon's Pract. 367–374; 2 Tidd, 1150. Subsequently by the statute of 13 Car. II., c. 2, as enlarged by 16 & 17 Car. II., c. 8, the same recognizance was required to stay execution in all personal actions in which a judgment was rendered upon a verdict, and in most cases double costs were given in case the judgment was affirmed ; and in writs of error upon judgment after verdict in dower and ejectment it was provided that execution should not be stayed unless the plaintiff in error should be bound to the plaintiff, in such reasonable sum as the court below should think fit, with condition, that if the judgment should be affirmed, or the writ of error discontinued, in default of the plaintiff in error, or he should be nonsuited therein, that then he should pay such costs, damages, and sum or sums of money as should be awarded upon or after such judgment affirmed, discontinuance, or nonsuit; and to ascertain the sum and damages to be awarded, it was provided that the court should issue a writ of inquiry as well of the mesne profits as