The opinion and judgment of the Supreme Court on the appeal conclusively show that a substantial and material error was committed by the chancery court, whereby the complainant was allowed to redeem the land by the payment of more than $150 less than the amount required by law for that purpose. Until the legal amount was paid in full the respondent was entitled to hold the land, and complainant had no right to its redemption
We think it is too clear for serious controversy that Morrison and his bondsmen did not “fail in said appeal.” On the contrary, they successfully impeached the correctness of the decree in a substantial particular, and secured the correction of the error. Whether for partial error a chancery decree is upon appeal corrected and affirmed, or reversed and rendered, is but a matter of form, and the choice is usually dictated by considerations of collateral convenience or policy. Certainly such a choice cannot determine, and is not intended to determine, the rightfulness or the wrongfulness of the appeal.
It will be noted that the obligation of the bond here exhibited is twofold, viz, to pay: (1) Such judgment as the Supreme Court may render in the premises; and (2) all such costs and damages as any party aggrieved may sustain by reason of the wrongful appeal and suspension of the judgment. The first obligation is absolute. The second is dependent upon the wrongfulness of the appeal.
The contention of appellant that an appeal fails, and is therefore wrongful, unless it results in a technical reversal of the entire decree, cannot be sustained either upon reason or authority. Indeed, in a case like this, it might result in the practical denial of the right of appeal, since it might be incumbered by liabilities which would exceed the value of the interests sought to be protected.
The judgment and opinion of the Supreme Court of the United States in the case of Crane v. Buckley, 203 U. S. 441, Sup. Ct. 56, 51 L. Ed. 260, is in line with our conclusion, and would alone be ample authority therefore. In accord, also, is Heinlen v. Beans, 71 Cal. 295, 12 Pac. 167, holding that an affirmance, to constitute a breach of a supersedeas bond, must be an affirmance
The authorities cited by appellant are not in point. Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. 590, 31 L. Ed. 523, and other cases, simply hold that modifications of the judgment appealed from do not prevent the appellate court from rendering the judgment against the sureties in the supersedeas bond — a result in accord with one of the primary obligations of the bond, viz. to pay such judgment as the appellate court may render in the premises.
Rehm v. Halverson, 197 Ill. 378, 64 N. E. 388, was an action on a supersedeas bond given on appeal from the judgment of a justice of the peace in forcible detainer. The judgment appealed from was for the plaintiff for the entire building, and on appeal in the circuit court the judgment was only for the first floor and one-half of the basement. As the defendant by his supersedeas wrongfully withheld possession of a physically distinct part of the premises from the plaintiffu and as to such distinct part failed to vindicate his possession, the Illinois court held, and properly so, it would seem, that as to that distinct part of the premises the defendant had not “prosecuted his appeal with effect,” and that the bondsmen were liable to the plaintiff for damage resulting from its wrongful withholding.
Such a question, however, is not before us now. The instant case is obviously different, in that the subject-matter of the rights in conflict was not separable, and Formby was entitled to possession of the entire premises until the entire redemption money was paid as prescribed by law. The error in the decree affected the entire subject-matter of the suit, and the appeal was not wrongful, either in whole or in part.
Appellant cites also our own case of Babcock v. Carter, 117 Ala. 575, 23 South. 487, 67 Ann. St. Rep. 193, and lays much stress upon the following language found in the opinion: “The purpose of the appeal was the reversal of the judgment rendered by the circuit court, and the reversal was the effect to which the principal was bound to prosecute the appeal; otherwise the condition of the bond was broken and the liability of the parties upon it was free from all contingency.”
As applied to the judgment there involved — a judgment of a circuit court, single and not correctible for error except by reversal in toto — the language quoted was, of course, correct, but it is by no means opposed to our conclusion in the instant case.
Affirmed.