Harrison v. Richards

226 F. 196 | 8th Cir. | 1915

AMIDON, District Judge.

William S. Richards held a judgment recovered in the state court of Iowa against James Harrison back in the early ’90’s. He brought suit in the federal court nearly 20 years later, asking to have this judgment revived; but the main feature of the suit was in the nature of a creditors’ bill to reach certain lauds standing in the name of Hettie W. Harrison, the wife of James 11arrisen, upon the ground that the consideration for the lauds was paid by Mr. Harrison. In that suit the trial court found in favor of Richnids. It revived the judgment stating the amount due to he 1,21,748.48, and provided that that sum should draw interest at 10 per cent, from the date of the decree, and that the original judgment should be merged in the new judgment, and further provided that the amount collected from Hettie W. Harrison under the decree should be credited on the judgment. The decree also established the claim against the lands standing in the name of Hettie W. Harrison in the sum o£ $10,355. It must be borne in mind that the reviving of ¡he original judgment in favor of Richards was a mere incident of the creditors’ bill. An appeal was sued out from this decree by Mr. and Mrs. Harrison, and, a supersedeas bond given in the sum of $10,000. Our opinion is reported in 196 Red. 770, 116 C. C. A. 394. Our decree as at first entered simply reversed the judgment of the trial court, with costs, amounting to $835.55. It further directed the trial court “to dismiss the bill of complaint.”

.After the filing of our opinion and tiie entering of judgment thereon, the appellee, Richards, filed a petition for rehearing. In it he asked that our judgment be modified, so as not to vacate or impair that part of the decree which revived and continued the judgment in his favor against Harrison. In his petition for rehearing he expressly stated that the validity of the judgment was in no way questioned b} the appeal, and that our decree, if allowed to stand, would not only deprive him of a judgment to which he was legally entitled, and in respect to the revival of which there was no assignment of error, but it would subject him to the peril of a plea in bar to a suit pending in the state court to revive the judgment. Acting upon this petition wc. entered a supplemental judgment as follows:

‘"On consideration whereof, it it? now hero ordered, adjudged, and decreed that Haiti petition for a modification of the decree of this court be and the same it; hereby granted to the extent only that that parWof the decree below which renewed the judgment against James Harrison under date of April 29, 1891, in favor of William S. iticiiards, be and the same is hereby affirmed, without costs to either party in this court; and it is further ordered and decreed by this court that in all oilier respects the decree of this court in this cjuse, entered on the 14th day of May, A. D. 1912, be and the same is hereby approved and confirmed.”

Thereafter appellants, Mr. and Mrs. Harrison, presented to this court a petition for rehearing, asking a modification of this supplemental decree, and therein explained that under its language it might possibly happen that Richards would claim that the supersedeas bond applied to the judgment in his favor against James Harrison, as well as to Tie decree against Mr. and Mrs. Harrison, charging the land. Upon the hearing of that petition, counsel for Richards again expressly stated to the court that no assignment of error was involved in the appeal based on the money judgment in his favor, and for that reason there was no occasion for modifying our supplemental decree. Acting upon the belief thus engendered by Richards upon both petitions for rehearing, this court denied the second petition for rehearing.

Notwithstanding these facts, upon the filing of our remittitur in the District Court, Richards applied to that court for a judgment on the supersedeas bond against both Hettie W. Harrison and the Title Guaranty & Surety Company, who had signed her bond on the appeal. The trial court granted the application, and entered judgment in the sum ofi $11,666. The present appeal is brought to review that judgment. It is plain beyond controversy that the judgment cannot be permitted to stand. It would be a fraud upon the defendants and upon the court. If the present contention of Richards had been even suggested when either of the petitions for rehearing were before us, our supplemental decree would have been so framed as to make it impossible for him to have obtained the judgment which he did obtain in the trial court. By his own representations in this court he induced us to make the supplemental decree, and to decline to modify it so as to protect the defendants against the judgment which he obtained from the trial court.

The judgment is reversed.

HOOK, Circuit Judge, heard the argument in this case, but took no part in the decision.