159 Iowa 417 | Iowa | 1913
The facts are not in dispute. One Seidlitz, having been found guilty in the district court upon a charge of contempt in violating the terms of a liquor injunction theretofore entered against him, was adjudged to pay a fine of $500 and costs, and that he be imprisoned in the county jail for a term of ninety days. To obtain a review of the record in that Case, and to annul said judgment against him, Seidlitz sued out a writ of certiorari from this court; and, to stay or- supersede the enforcement of said judgment pending the hearing upon certiorari, he filed a bond in the penal sum of $1,000, signed by the defendants herein as his sureties. The condition or obligation of said bond is contained in the following words: "Now, if the said appellant shall pay to the state of Iowa all costs and damages that shall be adjudged against . . . [him] on the final hearing of said petition, and shall appear and submit to the final order
Upon the issue thus joined, trial was had to the court without a jury. It was stipulated or admitted in evidence that Seidlitz was adjudged guilty of contempt in the district court, and sentenced to pay a fine of $500 and costs, including an attorney’s fee, and that he be imprisoned in the county jail for a term of ninety days. It was also conceded that the certiorari proceeding in which the bond was given was decided adversely to Seidlitz, and that neither fine nor costs have ever been paid. Upon this agreed showing of facts, the trial court found and adjudged that defendants were liable upon the bond for the payment of the costs and attorney’s fees taxed against Seidlitz in both the district and Supreme Courts, but that they were not liable upon said bond for the payment of the fine. Judgment was entered accordingly, and both parties except and appeal.
Seidlitz had been convicted upon a charge of contempt and sentenced, as we have seen, to pay a fine and to be imprisoned. That judgment he wished to have reviewed upon certiorari from this court. Under our practice, he could sue out the writ of certiorari without giving bond or security of any bind; but such proceeding would not stay execution for the collection of the fine or mittimus for his commitment to jail, and it would be possible for the judgment to be fully enforced and satisfied in the district court before a review of the record could be had in this court. To prevent this, he sought for and obtained an order staying or suspending the execution of the judgment against him, pending the disposition of the certiorari proceedings, on condition that he file a bond in the sum of $1,000. That it was intended as a supersedeas bond was beyond all question; and that it was so considered and given effect accordingly is perfectly clear. It is the contention of the defendants, however, that the terms of the bond obligate them for nothing more than the payment of costs in the certiorari proceedings and the submission of Seidlitz to any further order or judgment thereafter rendered against him in either court in such proceedings. Starting with this theory of the nature of the bond, it is then said that, except for the item of costs accruing in this court upon the certiorari proceedings, no judgment or order was thereafter rendered against Seidlitz in either court, and therefore, except for the costs last mentioned, there is and can be no right of recovery against the defendants. It may be conceded that, as applied to the first condition of the bond, which provides that Seidlitz “shall pay all costs and damages which shall be adjudged against him upon the final hearing of said
An undertaking that a defendant shall “abide the judgment” rendered against him has frequently been construed to require a payment of such judgment. Harris v. Elevator Co., 66 Kan. 372 (71 Pac. 804); Taylor v. Hughes, 3 Me. [3 Greenl.] 433; Corson v. Tuttle, 19 Me. 409; and, though the decisions are not entirely harmonious upon the proposition, we deem it the better holding and less indueive to practices whereby stays of proceedings may be obtained upon the filing of meaningless bonds. The general policy of our laws, with reference to the suspending or staying of proceedings upon judgments, is seen in the provision that no stay shall be allowed upon an appeal, except upon filing a bond to pay such judgment in case of its affirmance (Code, section 4128), and that, where the appeal is from the assessment of a .fine, the bond must secure its payment, should a reversal not be obtained (Code, section 5506). In the chapter upon certiorari (Code, section 4156), it is provided that, where a stay of proceedings is sought, it can only be allowed upon giving a bond, the penalty and-conditions of which shall be fixed by the court. In view of the general limitation to which we have adverted upon the staying of proceedings upon a judgment, we think it a fair deduction that ordinarily this court cannot properly order a stay in certiorari without a bond for payment of the judgment in case of affirmance, and that the provision in section 4156 simply authorizes in addition thereto, such other reasonable conditions as the court or judge granting the writ may deem wise. The order granting the stay evidently •was made in the belief that it required such security. The bond was given for the purpose of securing such stay. It accomplished its purpose in delaying and postponing the enforcement of such judgment. If there be any ambiguity or uncertainty in phrasing the bond, it ought to be given effect according to the apparent meaning or construction which all parties have placed upon it. - In our judgment it should be
It follows that the judgment below will be affirmed upon defendants’ appeal, and reversed upon the plaintiff’s appeal, and the cause will be remanded to the trial court for the entering of a modified judgment in harmony with this opinion.
Reversed upon plaintiff’s appeal; Affirmed upon defendants’ appeal.