Cahall v. Citizens' Mutual Building Ass'n

74 Ala. 539 | Ala. | 1883

BB.ICKELL, C. J.

— The first proposition pressed by the appellants for the reversal of the judgment is, that the terms of the bond embrace Only damages resulting from the appeal, and not damages resulting from the stay or suspension of execution of the judgment pending' the appeal. This seems to us too narrow, and rather an illiberal construction of the condition of the bond, which is for the payment “of all costs, and such damages as the plaintiff may sustain by reason of this appeal.” These wprds contemplate security and indemnity to the plaintiff against all damages resulting to him from the appeal and its legal consequences and incidents; all damages of which the appeal is the moving cause — the direct, immediate agency producing them. The purpose of the bond, as recited on its face, was an appeal suspending the execution of the judgment; and the purpose of the statute which authorizes its taking, is the stay or suspenson of the execution, keeping the parties and the controversy m statu quo pending the appeal. The bond being executed, as was this bond, in pursuance of an ■ order of the judge of the court in which the judgment was rendered, the legal incident and consequence of the appeal was, while it was pending, the suspension of the execution of the judgment. In the absence of the appeal, the bond could not have been taken; and without the appeal and bond, there could not have been a suspension of execution. The fair and just construction of the words of the condition of the bond is, that the obligors bound themselves, in the event of the affirmance of the judgment, to pay and satisfy the costs of the appeal, and all such damages as were the natural, proximate consequence of the appeal and its legal incident, the suspension of execution.

The judgment from which the appeal was taken was, that the plaintiff recover of the defendant the premises, or the possession of the premises in controversy. The only writ which, could issue for the enforcement of the judgment, other than a fieri facias for the costs adjudged against the defendant, was a writ of habere facias possessionem, directed to the sheriff, and commanding him to put the plaintiff in possession. The issue and execution of this writ was suspended, or superseded, by the appeal and bond, until the judgment of this court was pronounced. Security, indemnity against loss or injury, resulting to the plaintiff directly from the suspension of the execution of the judgment, it is the manifest object of the statute, and of the bond required, to afford. The loss of the possession, the value of its use, pending the appeal, is the immediate consequence of the suspension of the execution, for which the plaintiff is entitled to compensation; and if it is not made, the condition of the bond is broken. — Drake v. Webb, 63 Ala. 596; Zeigler v. David, 23 Ala. 127.

Let the judgment be affirmed.