51 Ky. 522 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
This was an ordinary proceeding by petition in which Graham was plaintiff and Swigert was defendant on a supersedeas, bond executed by the defendant as security for Strader, Gorman, and Armstrong, to remove a case decided by this Court, to the Supreme Court of the United States.
Graham filed a bill in the Lousiville Chancery Court against Strader and Gorman as owners of the steamer Pike, to recover damages for the asportation of three slaves from Lousville, Ky., to Cincinnati, Ohio, and their consequent escape to Canada. A decree was ren
After the return of the cause to the Lousville Chancery Court, on the 6th day of November 1845, that Court rendered the following decree, viz:
“The Court being now advised, and the jury em-pannelled herein having found the facts submitted to their inquiry for the complainant, and assessed his damages at $3,000, it is now ordered and decreed that the complainant is entiled to have so much for his damages by him sustained, &c., and unless the said sum be paid by the 15th day of this month, or the said steamboat Pike, her engine, tackle, and furniture, be then forthcoming to be sold for the purpose of raising the same, together with the complainants’ costs, &c., and in as good plight and condition,as when the bond of said Armstrong and C. M. Strader herein was executed, or of a value sufficient to satisfy the said sum and costs, the Court will make such order as shall be necessary, against the obligors in said bond to enforce said judgment, &c.”
Afterwards, viz ; on the 28th day of the same month, the following order was made. This day “ came the complainant, by his council, and produced a copy of the order or decree herein, with an endorsement threon of its service on Charles M. Strader, and John Armstrong, and they not appearing in Court, although now solemnly called, whereupon and by the consent of the parties said decree is to stand and be considered as a final decree in the cause, from which an appeal may now be taken.”
The case was accordingly brought to this Court upon an appeal by the defendants, and the decree affirmed at the June term, 1847.
Thereupon the case was removed by the defendants to the Supreme Court of the United States, and the • supesedeas bond upon which this action was brought,
The plaintiff in the petition, claimed thereon, and prayed judgment against the dependant for, three thousand dollars, ■ the amount of the decree of the Louisville Chancery Court with interest thereon from
The defendant, in his answer, contended that he was not liable upon the bond for the three thousand dollars, ascertained by the decree of the Louisville Chancery Court, to be due to the plaintiff, or for the costs of that suit or for any thing except the costs in the Court of Appeals. He insisted that'the bond, according to its legal effect, did not impose upon him any such responsibility ; and if it did, that it was more comprehensive than was required by law, and was executed by the mutual mistake of himself and the Clerk of the Court who took it; as he only agreed or intended to execute such a bond as the Clerk was authorized and required by law to demand and take. And further, that the condition in the bond to pay the amount of the decree of the Louisville Chancery Court, wras made and inserted by the Clerk without order or authority of law, and was not obligatory, but the bond, in consequence thereof, was wholly void and inoperative.
The parties, by consent, submitted the law and facts of the case to the Court, without the intervention of a jury, and the Court decided that the defendant was only liable upon the bond for the costs in the Court of Appeals, and not for the amount of the decree of the Louisville Chancery Court, and rendered judgment accordingly. From that judgment the plaintiff has appealed.
It is obvious that the stipulations contained in the bond, are sufficiently broad and comprehensive to secure the payment of the amount, to which the plaintiff was entitled under the decree of the Louisville Chancery Court. The legal effect of the bond is therefore the subject to be examined and considered; and this depends in a great degree upon the nature and character of the decree referred to. If it were substantially a decree against the defendants for money, then there can be no question that the law required them, in case they appealed, or suspended its execution by
The condition of the bond required by the act of Congress is substantially the same' as is required by the laws of this State in the case of appeals from judgments and decrees. It is therefore contended, that the decisions of the court upon the effect of such bonds, must determine the extent of the obligation of the surity in this case ; and that according to the principles of those decisions, he is not liable for the amount of the decree of the Louisville Chancery Court.
The cases referred to for the purpose of sustaining this proposition, are Talbot vs. Morton, (5th Litt. Rep. 326.) and Sumrall, et. al., vs. Reid, (2., Dana 65.) In both these cases an appeal was taken from a decree to foreclose a mortgage on real property, and subject it to sale for the payment of judgments at law. In the first it was held that the bond was sufficient, although it did not secure the payment of the judgment at law, as the decree rendered was against the mortgaged estate, and there was no decree for money. And the Court in that case said,, “it cannot be contemplated by law, that the bond should secure the real estate or its value, or that accidents of fire and destruction of the estate are to be provided for in the bond. In the case of Sumrall, et. al., vs. Reid, supra the appeal bond was conditioned to pay the amount recovered by the decree, and costs ; and it was decided that there was nothing recovered by the decree, and it only subjected the real estate in the mortgage to the payment of a judgment at law, there was no liability on the surety for the debt.
The principle attempted to be deduced from these cases is, that the law prescribes one uniform condition to such bonds, but discriminates between the liability imposed by a breach of the condition, in the different classes of cases. In appeals from a judgment or decree in personam the liability extends so far as to secure
If however, it he conceded, that the same doctrine ought to apply, to all decrees merely for the sale of mortgaged property whether personal or real, it by no means follows, that it ought, to be extended to that class of cases, where personal property is attached by a proceeding in chancery instituted for the purpose of obtaining the payment of the complainants demand, where the debtor has a right to retain the property by executing a bond, especially when the appeal is taken by the debtor himself, having the property in his possession at the time. The effect of the appeal may be to diminish very materially, if not to destroy the security if the complainants demand, by postponing the execu-ion of the decree, until the sureties in the bond execu-ed by the debtor, become insolvent, and the property tself be consumed or disposed of, and placed beyond he reach of the creditor.
In the case of Worth et al vs Smith, (5 B. Monroe, 04,) it appeared that a number of creditors were proceeding at the same time to subject, by attachments, the Steamer John Mills, to the payment of their sever
The statutes under which the proceeding was instituted in the Chancery Court, made the defendants liable to the action of the party aggrieved, either at law or in chancery: (1 Yol. Slat. Law, 260,) so that the chan
The damages sustained by the complainant had been ascertained, and a decree rendered for the amount. The defendants had been required to produce the attached property, and had failed to comply with the requisition. The chancellor could have ordered an execution to issue against them immediately for the sum decreed and the costs of the suit, or could have enforced'the payment of the amount, by proceeding against the parties in the bond executed for the forthcoming of the property. In this attitude of the case, the parties agreed that the decree pronounced should be treated as a final decree, and the defendants obtained an appeal. The effect of the appeal was to suspend the execution of the decree, and to prevent, the chancellor from ordering an execution to issue against the defendants, or to enforce the bond. The decree as it was rendered would not have authorized an execution to issue against the defendants without an additional order, but still the decree was personal, and imposed upon the defendants the duty to pay. the money to which .the complainant was entitled, and the enforcement of this duty was prevented by the appe'al. There Isa clear distinction between this case, and'the cases-dhat have been referred to. In those cases, the defendants were not personally liable and the chancellor ha-efe no power to order an execution to issue upon the J&j cree. In the case of Worth et ail vs Smith, the appeal
If the chancellor had rendered a decree that the defendants should pay the sum adjudged to the complainant and the costs of the suit, or if he had ordered an execution to issue therefor against the defendants, there could then have been no contest, in respect to the liability of the surety for the amount of the decree. Is there any substantial difference between such a decree and the one that was rendered, and which the parties agreed to treat as final? Would not the extent of the liability of the defendants be fixed and determined by either, especially as the decree rendered was made final
The decision of the Circuit Court, is in conflict with the views expressed, and the principles settled in this opinion, and is deemed erroneous.
Wherefore, the judgment is reversed and cause remanded for a new trial, and further proceedings consistent with this opinion.