54 Miss. 337 | Miss. | 1877
delivered the opinion of the court.
This is a motion to dismiss the appeal, because the appeal bond is not in accordance with the statute. The condition is this; viz., “Now, if the said (appellant) shall prosecute said appeal with effect, or, in case of failure therein, shall pay and satisfy the amount of said judgment (referring to the judgment described in the preceding part of the condition) according to the consideration of said Appellate Court (meaning this court, which is mentioned before in the condition), and, moreover, perform and satisfy such, the consideration and judgment of said Appellate Court thereon, then this obligation to be void; otherwise, it is to remain in full force.” This bond is not conditioned in the words of any statute, but embraces in substance every thing contained in the language of § 1254 of the Code. But it is urged by counsel in support of this motion that the bond was not given under the section cited, but under § 1252, which prescribes the condition of a bond on appeal without supersedeas, and that it requires a bond conditioned to pay “ all costs which have accrued in the case, or which may accrue in the prosecution of the appeal; ” and that the addition to the condition of the clause, “or in case of failure therein,” renders the bond invalid, and that the appeal must be dismissed. The frequency with which questions arise upon motions to dismiss appeals from the Courts of Chancery has induced us to examine the whole subject, and to declare in this opinion how cases may be brought to this court from the final decrees of Chancery Courts.
Sect. 411 of the Code entitles any party to a final decree in chancery to a writ of error as a matter of right without bond. Such writ of error will operate as a supersedeas only when a bond shall be given as prescribed by said section. In view of this plain provision of the statutes, which has been in force, in the very words in which it now exists, since the Code of 1857, and has been substantially in force since the year 1837, it is surprising that parties desiring to have decrees reviewed by
Sect. 1252 of the Code prescribes what bond shall be given “ in those cases where no supersedeas is applied for,” and § 1254 prescribes “ the condition of appeal bonds where super-sedeas is granted.” The former requires a bond for costs “ accrued in the case, or which may accrue in the prosecution of the appeal; ” the latter, a bond conditioned to perform the “ original decree, and also such final decree as the Supreme Court may render, and all the costs which have accrued, or may accrue, should such decree be affirmed.”
It is insisted that a bond under § 1252 is vitiated by embracing in its condition the clause, “ should such decree be affirmed,” or any equivalent words which make the obligation of the bond conditional on the judgment of this court. If that be true, the bond under § 1252 is not conditional at all, but absolute; and it is senseless in the statute to speak of a condition. According to that view, the bond is a single one, though in form conditional. The form of condition is a cheat and snare, a mere form to disguise an absolute bond to pay all costs which have accrued in the case, or which may accrue in the appeal, without regard to the result of the appeal; thus binding the appellant (and sureties) who obtains a reversal of a decree, not only for the costs of the appeal in which he was plaintiff, but for all the costs of the case which had been erroneously adjudged against him below by an unjust decree reversed here. Can it be that a defendant in chancery, who appeals from a final decree against him, and procures a reversal of the decree, and a judgment here for recovery from his adversary of his costs, most wrongfully sustained, can, nevertheless, be sued on his appeal bond, with his sureties, for all costs of the case and the appeal which have been adjudged against his adversary ? The reversal of a decree vacates it as to costs (unless by special judgment here), and discharges
It results from these views that an appeal bond, where no supersedeas is applied for, is not bad, because its obligation is made conditional on the affirmance of the decree ; and as the bond is conditioned substantially as required by § 1252 of the Code, the motion to dismiss is Denied.
