Stiles v. American Surety Co., 143 Minn. 21

143 Minn. 21 | Minn. | 1919

Brown, C. J.

In August, 1917, plaintiff duly recovered a judgment in the district court of Hennepin county against Jacob M. Dickinson, as receiver of the Chicago, Rock Island & Pacific Railway Company, for the sum of $2,356.75. Defendant therein duly appealed from the judgment to this court, where it was in all things affirmed with costs. Defendant then sued out a writ of error for the review of the judgment of this court by- the Supreme Court of the United States, and by the order allowing the writ was required to execute and file a bond as required by law in the sum of $2,500, the bond when approved to act as a supersedeas. In compliance with the order a bond in due form was executed and filed in the office of the clerk of this court, conditioned as follows:

“Now, therefore,. the condition of this obligation is such that if the above named Jacob M. Dickinson, as receiver of the Chicago, Eock Island & Pacific Railway Cmpany, shall prosecute his said writ of error to effect and answer all costs and damages which may be adjudged if he shall fail to make good his plea, then this obligation to be void, otherwise to remain in full force and effect.”

The cause then proceeded to the Supreme Court of the United States, where in due course of procedure the judgment of this court so under review was in all things affirmed.

The receiver on the remand of the cause refused to pay the judgment of the Hennepin’ court, so appealed to and affirmed' by this court, and later by the Supreme Court of the United States, and plaintiff brought this action to recover on the bond so executed and filed on the issuance of the writ of error. Defendant, the surety in such bond, interposed in defense that the payment of the judgment of the Hennepin court was not within the conditions of the bond; that the judgment for costs, $25, entered in this court in- connection with the affirmance of the judgment of the Hennepin court, was the only judgment the defendant was obligated by the bond to pay, therefore that plaintiff could not recover. The trial court rejected this defense and ordered judgment in plaintiff’s favor for the full amount of the judgment of the Hennepin court, and defendant appealed.

The conclusion of the trial court was right and must be affirmed. The appeal to this court from the district court, removed the action, judgment and all, to this court for review. The judgment was affirmed by a formal judgment of this court. The provision thereof that plaintiff have and recover the sum of $25 costs, was but an incident of the final action of this court, and was not the essence of the decree. The writ of error was in review of the judgment affirming the Hennepin county judgment, and not the part thereof which awarded the costs of the appeal to plaintiff. The bond therefore necessarily obligated defendant to pay the principal judgment, not merely the costs. It was supersedeas in form and prevented proceedings on the judgment below. Erickson v. Elder, 34 Minn. 370, 25 N. W. 804; American Surety Co. v. Northern Packing & Prov. Co. 178 Fed. 810, 102 C. C. A. 258; Rosenstein v. Tarr, 51 Fed. 368.

Judgment affirmed.