228 F. 273 | 5th Cir. | 1915
By a decree rendered on January 9, 1914, in the case of Rathbun-Jones Engineering Company v. People’s Eight Company, it was adjudged that “plaintiff do have and recover of and from the defendant * * * the sum of six thousand, eight hundred and four dollars and ninety cents ($6,804.90),” and also interest and costs. The decree further provided for the establishment
“That said order was entered by the court without pleading, without notice, and without hearing, against, to, or of these petitioners, or either of them. And said order is in violation of the Constitution of the United States, in that it deprives your petitioners of their property without due process of law.”
Among other grounds stated in the motion were the following:
“That, said bond did not secure, and was not intended to secure, the payment of the amount of .said judgment, or any deficiency that might remain after the application of the proceeds of the sale of said property, but operated only as indemnity against damages and costs by reason of said appeal; and, in this connection, petitioners show that all the costs on said appeal and adjudged against them by- the Circuit Court of Appeals have been paid, and attach the receipt of the clerk of this court hereto to show the fact.”
“That in its bill filed in this cause the complainant sought a judgment, as at law, for any deficiency that might remain due on said judgment after the application of the proceeds of the sale of said mortgaged property, and such judgment was not awarded it; and therefore its right to a deficiency judgment and execution therefor has been adjudicated against it, and such right, if it ever existed, is res ad judicata, which these petitioners now here*277 plead in bar of any right of the plaintiff to have execution for such deñ-ciency.”
"That the sale of said property, and the acceptance of the proceeds thereof, oiiera ted as a complete satisfaction of the decree aforesaid, and no cause of action now exists, if any ever existed, against your petitioners or either of them.”
The case is here on separate appeals sued out from, respectively, the decree of February 24, 1915, from the decree overruling the above-mentioned motion, and from a decree overruling an application of Clark Pease for an injunction restraining the enforcement of the execution against him. No stay of the execution having been ordered before the hearing in this court on the last-mentioned appeal, Clark Pease, under protest, paid the amount called for by the execution against him.
Nothing contained in rule 13 of this court can be given such effect as to prevent the bond standing as security for the superseded decree for the payment of money, at least in so far as that decree is not otherwise secured. The provision of that rule that “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 cost and interest on appeal,” by no means has the effect of preventing a bond which superseded such a decree as the one under consideration, which was for the payment of money and also for a lien on property ordered to- be sold and the pn> ceeds applied on the decree, standing as security for the decree for money so far as it remained unsatisfied after the application of the proceeds of the property ordered to be sold. That rule undertakes to furnish a guide for' determining- the amount of supersedeas bonds in specified cases, and shows that the amount is to be more or less according as the appellee or defendant in error may be liable to- be subjected to more o.r less damage by the superseding or suspension of the execution of the decree or judgment in his favor; but certainly it does not undertake to deprive a supersedeas bond in any case of the effect given to it by the statute of subjecting the principal and sureties to liability “for all damages and costs” which the appellee or the defendant in error may sustain if the appellant or plaintiff in error “fail to malee his plea good.” The liability on a bond which operated to suspend such a decree as the one under consideration would not extend to “all damages,” if it did riot cover so much of the decree for the payment of money as was left unsatisfied after the application to the decree of the
“You, therefore, are hereby commanded that such execution and further proceedings be had in said canse as according to right and justice, and the laws of the United States, ought to be bad, the said writ of error [appeai ?] notwithstanding. ”
Plainly it was competent for the court to issue against the defendant in the cause such an execution as was issued. And the surety’s submission to the court of the question as to his liability on the supersedeas bond conferred on the court the right to decide the question and to provide for the enforcement of its decision by proper process. As at the time that decision was rendered the unexecuted part of the decree which had been superseded was “solely for the payment of money,” and as it was for that amount only that execution against the surety was allowed to be enforced, the decree having already been satisfied in part by the application of the proceeds of the sale of the property subjected to a lien and ordered to be sold, the result of what the court did was to allow the execution of appropriate process against the surety to be proceeded with, to the end of coercing the payment by him of no more than the amount which the supersedeas bond obligated him to pay. A surety on the bond cannot sustain a complaint against action of the court having this effect only. It follows that the decrees presented for review by the two appeals first above mentioned as now pending are affirmed.