75 F. 694 | 6th Cir. | 1896
(after stating the facts). Section 1000 of the Revised Statutes of the United States makes the following provision for supersedeas bonds:
“Every justice or judge signing a citation on any writ of error, shall except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and*698 if he fail to make this 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.”
Rule 29 of the supreme court (3 Sup. Ot. xvi.), adopted to prescribe the manner of carrying out the foregoing section, is as follows:
“Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecuté his writ or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree including just damages for delay, and costs and interest on the appeal; but in all suits where the property, in controversy necessarily follows the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property and the costs of the suit, and just damages for delay and costs and interest on the appeals.”
The main controversy in this case is whether the judgment against Gratiot county which was superseded was “a judgment for the recovery of money not otherwise secured.” If it was, then clearly the bond taken was in proper form, and rendered the sureties liable for the whole amount of the judgment in the circuit court. It is strenuously urged by counsel for the plaintiffs in error that the judgment is in reality not for money, but only for an order of mandamus on county officers to make a levy upon lands in'certain specified townships; that the county is in no sense responsible as a debt- or for the amount established to be due, and that the only amount recoverable under the statute, and embraced by a lawful supersedeas bond, is for costs and damages for delay, which are not shown. It is settled by a long line of decisions of the supreme court that the circuit courts of the United States have no jurisdiction to consider and decide a suit for a mandamus to compel the discharge of a statutory or other duty except for the purpose of enforcing their judgments previously rendered. The result was reached by a construction of the eleventh and the fourteenth sections of the judiciary act, which now appear in the Revised Statutes as sections 629 and 716. The former confers on circuit * courts, original jurisdiction “of all suits of a civil nature at common law,” and the latter provides “that such courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” The supreme court was of opinion that while, if the eleventh section of the judiciary act was not accompanied by the fourteenth, a mandamus proceeding might be properly regarded as a suit of a civil nature at common law, the presence of section 14 in the same act, providing for the issuance of such a writ as an ancillary writ, indicated that the words of section 11 were to be given a narrower construction, and one which would not include suits in mandamus. Hence the uniform ruling of the supreme court has been that, even in states
But it is vigorously pressed upon us that the debt for which the judgment was rendered was not the debt of the county, hut that of the owners of certain lands in three townships, which were benefited by two ditches, it is true that the county did not obligati* itself in terms to pay these warrants, though they were drawn and approved by its officers; but the effect of Mr. Justice Brown’s opinion and judgment in the original suit (43 Fed. 350) was that by law it was the duty of the county to collect the tax upon these lands, and to pay the warrants out of the fund thus created; that, as then* was no other corporate or quasi corporate body to represent the persons whose lands were benefited, the county was evidently intended by the law to he their representative, and, therefore, that the county was the proper defendant, as trustee and representative of the real debtors, against which a judgment might he entered as the essential foundation for a, mandamus proceeding to enforce the collection of the proper taxes. Mr. Justice Brown followed in his
“But the common-law adjudications show that the judgment may he molded so as to conform to the rights of the parties under the law, and by analogy support the view we. take. Thus in Peck v. Jenness, 7 How. 612, where the plaintiff attached goods of his debtor before the latter was proceeded against in bankruptcy, and where, pending the action, the debtor was discharged, the supreme court of the United States held that it was competent and proper for the court to render a judgment, notwithstanding the discharge, for amount of the debt,- damages, and costs, ‘to be levied only of the goods of the defendant attached on plaintiff's writ, and not otherwise.’ ‘The books,’ says Mr. Justice Grier in this case, ‘are full of precedents for such a judgment.’ When an administrator pleads plene administravit, the plaintiff may admit the plea, and take judgment of assets, guando acciderint. When the defendant pleads a discharge of his person under an insolvent law, the plaintiff may confess the plea, and have judgment to be levied only of defendant’s future effect. Peck v. Jenness, 7 How. 623. So, subsequently, the supreme court held that when contracts made payable in coin are sued upon, judgments may be entered for coined dollars, and parts of dollars. Bronson v. Rodes, 7 Wall. 229. Upon the whole, our judgment is that the action is well brought against the county; that the county may make defense, but, if the plaintiff shall be found entitled to recover, he may have judgment against the county for his debts, damages, and costs to be enforced, if necessary, by mandamus against the county court, or the judges thereof, to compel them to levy and collect a special tax according to the statute in such ease provided and not otherwise. Demurrer overruled.”
The reasoning of Jndge Dillon in this case met with the unqualified approval of the supreme court in County of Cass v. Johnston, 95 U. S. 360, and has been followed by this court in Breckinridge Co. v. McCracken, 22 U. S. App. 115, 127, 9 C. C. A. 442, and 61 Fed. 191. The affirmation of Mr. Justice Brown’s judgment in this case shows the concurrence of the supreme court in his view that the same principle was applicable to the drain warrants in this case, which Judge Dillon had applied in respect of bonds issued for township purposes in the name of the county. The theory on which the judgment against the county in such cases is entered is that the county is the trustee to apply a particular fund, when collected, to the payment of the indebtedness; and therefore that a judgment may properly be rendered against the county, to be made from the particular fund created by the levy of taxes on certain described lands. But we do not see- how this limitation upon enforcing the judgment renders it any less a judgment for the recovery of money. A judgment against an executor, though it is de bonis testatoris, is none the less a judgment for the recovery of money. The fact that the judgment does not involve the personal liability of the defendant cannot affect its character as a- money judgment. That is a
It Avas not “otherwise secured,” Avithin the meaning of that rule. “Otherwise” means otherwise than by more force of the judgment. In Ohio, a judgment is a lieu on the real estate of the defendant for one year after its rendition. It will hardly be contended that a defendant in a federal court in Ohio could, under rule 29, stay a judgment against him for money only because be happens to be the owner of land in Ohio. The meaning of “otherwise secured” is sufficiently explained by that language in the rule which points out the instances in which a bond for the payment of a judgment is not required. They are all cases in which the court has, by reason of a lien on property secured to plaintiff otherwise than by the judgment or by reason of actual custody of property liable to satisfy the claim asserted, the means of making the claim of the plaintiff by subjecting specific property. In the judgment in this case it may be that the taxes, after they shall be levied, avüI be a lien on the lands described in the judgment; but. no taxes are yet levied, and no lien can exist, before the levy. The judgment, therefore, is secured only in the same sense in Avhich every judgment is secured, namely, that wdien execution is levied on the land of the debtor it may be sold to pay the claim.
It is said that to exact and to enforce this bond as it is Avritten is to compel the sureties to pay what the principal in the bond could not he compelled to pay, and that it is inequitable, and beyond the poAver of the circuit court a,s the condition of a review of its judgment and of a stay of execution to require that sureties shall be furnished to do that which exceeds the liability of the principal under the judgment as rendered. It may be conceded that no bond which compels the surety to do more than is adjudged against the prinei
Two authorities are cited to show that in cases like this the only proper bond under the statute is for costs and nominal damages. The first is U. S. v. Mayor, etc., of City of New Orleans, 8 Fed. 112. That was a decision by Judge Pardee in fixing a supersedeas bond for a writ of error to an order granting a mandamus directed against city officers commanding them to levy a tax. It was not a judgment for the recovery of money. It could only be satisfied by the levy of the tax. The mandamus had doubtless been preceded by a judgment for money, but it was the order of mandamus which was to be made the subject of review on error, and not the judgment. The other authority cited is an abstract and memorandum of some remarks made by Judge Treat in the case of Fourth Nat. Bank v. Franklin Co., reported in 10 Cent. Law J. 193. Judge Treat was considering the amount of a bond necessary to supersede a writ of mandamus, and on the authority of Justice Miller he said that in such a case a bond, not for the amount of the judgment, but only for costs and damages, was needed. He said:
“If they go up on the judgment, they would have to give a bond equal in amount to the recovery had on the judgment, yet if they go up, not on the judgment, but on questions arising on the alternative or peremptory writs of mandamus, as to the power of the court, etc., a bond sufficient to meet that question is all that is needed.”
It is manifest that this case, instead of supporting the contention for the plaintiff in error, is directly in conflict with it.
The case of Supervisors v. Kennicott, 103 U. S. 554, is also relied on, but it is plainly distinguishable from the case at bar. There a county had, under an enabling act of the legislature, mortgaged its swamp lands to secure the bonds of a railroad, without entering in
There remains but one more objection to the judgment below to consider. It is said that no judgment could he taken until after the county had had time to make the levy on the lands to be taxed, and until October following the July in which the suit was brought no levy could he made under the law of Michigan. The obligee in the bond was under no duty to wait until then. The condition of the bond was broken when the supreme court affirmed the judgment, because then it was finally settled that the plaintiff in error had not prosecuted its appeal to effect. Babbitt v. Finn, 101 U. S. 7; Davis v. Patrick, 12 U. S. App. 629, 6 C. C. A. 632, and 57 Fed. 909.
The judgment of the circuit court is affirmed, with costs.
