United States Surety Co. v. American Fruit Product Co.

40 App. D.C. 239 | D.C. Cir. | 1913

Mr. Justice VaN Oesdbl

delivered the opinion of the Court:

Where property in this jurisdiction is attached in the possession of the owner, and a bond given for its release, no appraisement is required. The only provision of law which seems to imply the necessity of an appraisement is found in see. 455 of the Code [31 Stat. at L. 1261, chap. 854], which provides that “if the property attached be delivered to the defendant upon his executing an undertaking as aforesaid, and judgment in the action shall be rendered in favor of the plaintiif, it shall be a joint judgment against both the defendant and his surety or sureties in said under talcing for the appraised value of the property.” In the absence of a more specific statutory requirement for an appraisement, we are disposed to rule that a formal appraisement is not required. We think that the appraisement referred to as a limitation upon the amount of the judgment that may be rendered against the surety only applies where the value of the property attached is not sufficient to satisfy the amount of the judgment in favor of the attaching creditor. In that instance, as the surety could only be held for the value of the attached property, the court should ascertain the value of the property, and accordingly enter judgment against the surety. But this contingency does not concern us, since the value of the property is conceded to be far in excess of the judgment.

There was no error in overruling the objection of the appellant to the second trial, on the ground that the first judgment was not vacated as to defendant. The common-law rule prevails in this country, to the effect that where a judgment against several defendants is vacated and a new trial granted as to part, the judgment as to all is set aside. Hanley v. Donoghue, 59 Md. 239, 43 Am. Rep. 554; Van Renselaer v. Whiting, 12 Mich. 449; Long v. Garnett, 45 Tex. 400; Hughes v. Lindsey, 10 Ark. 555; Richards v. Walton, 12 Johns. 434.

Neither was there error in overruling the objection of appellant to the second trial on the ground that no issue had been joined between plaintiff and appellant. The issue to be tried was the one joined between plaintiff and defendant, to which appellant was not a party, unless it bad proper grounds for becoming suck under sec. 400 of the Code. Appellant’s only relation to tbe original suit was through its contract to abide by and perform the judgment that should be rendered against defendant. Of course, if the judgment was procured by fraud or collusion between plaintiff and defendant, appellant can avail itself of this defense when called upon to respond to the judgment. But no claim of fraud has been made in this case.

But it is urged that the attachment law is unconstitutional in so far as the form of undertaking required by sec. 454 of the Code prescribes for the submission of the parties to the undertaking to the jurisdiction of the court, with an agreement on their part to abide by and perform the judgment of the court in relation to the property attached; while sec. 455 provides that, in the event of judgment in favor of the plaintiff, it shall be joint “against both the defendant and his surety or sureties in said undertaking for the appraised value of the property.” It was held by this court in Tenney v. Taylor, 1 App. D. C. 223, that a provision in an appeal bond “to abide by, perform, and pay the judgment of the court” was not equivalent to a waiver of process or submission to the jurisdiction of the court. In other words, it was held that the mere undertaking to perform the judgment of the court did not confer jurisdiction to render judgment against the surety.

But here we have a different case. An attachment or appeal bond is a contract. Where the surety, by express agreement in the bond, as in this case, agrees to submit to the jurisdiction of the court, and abide by and perform the judgment of the court, it is equivalent to a waiver of process and submission to the jurisdiction of the court. Where the statute provides for summary entry of judgment against the surety, and, by the terms of the bond, he has submitted himself to the jurisdiction of the court for that purpose, no fact remains to be ascertained to render the surety liable, and a separate action on the bond is unnecessary. Moore v. Huntington, 17 Wall. 417, 21 L. ed. 642; Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 Sup. Ct. Rep. 254; Hopkins v. Orr, 124 U. S. 510, 31 L. ed. 523, 8 Sup. Ct. Rep. 590.

This question was fully passed upon in Beall v. New Mexico, 16 Wall. 535, 21 L. ed. 292. In that case the court was considering the validity of a judgment upon an appeal bond entered under a statute similar to ours, which provided that “in case of appeal in civil suits, if the judgment by the appellate court be against the appellant, it shall be rendered against him and his securities on the appeal bond.” Sustaining the validity of the judgment, the court said: “The first error assigned is, that judgment was entered by the supreme court against the sureties of the appeal bond as well as against the appellants below. This point depends on the question whether the statute of the territory authorizing such a judgment is a valid one or not. As the legislative power of the territory, by the organic act, extends to all rightful subjects of legislation consistent with the Constitution of the United States, it would seem to extend to such a case as this. A party who enters his name as surety on an appeal bond does it with a full knowledge of the responsibilities incurred. In view of the law relating to the subject it is equivalent to a consent that judgment shall be entered up against him if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance, and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, why this effect should not be given to appeal bonds in other actions, if the legislature deems it expedient. No fundamental constitutional principle is involved; no fact is to be ascertained for the purpose of rendering the sureties liable, which is not apparent on the record itself; no object (except mere delay) can be subserved by compelling the appellees to bring a separate action on the appeal bond.” If this is the law as to appeal bonds, it is not apparent why the Congress may not extend similar jurisdiction over sureties upon attachment bonds.

Error is assigned in admitting the testimony of the witness Cusick, the deputy United States marshal who served the writ of attachment. The testimony was to the effect that he telephoned the marshal’s office from the building where the attached property was located, and was asked by the chief deputy marshal how long it would take to make an appraisement of the property, to which witness replied that it would take at least two or three days, whereupon the chief deputy instructed him over the phone not to have the appraisement made, but to inquire of Mr. Semines if he had $20,000 worth of stock there; that witness made the inquiry, “and Mr. Semines said, 'Yes, I have a great deal more.’ ” It is unnecessary to determine the admissibility of this evidence; for, if inadmissible, it could not constitute reversible error, inasmuch as it related solely to the value of the property attached; which, it is conceded, was far in excess of the amount of the judgment.

The judgment is affirmed with costs. Affirmed.

An application by the appellant for the allowance of a writ of error to the Supreme Court of the United States was denied May 6, 1913, Mr. Justice VaN Oesdel delivering the opinion of the Court:

This is an application for a writ of error to the Supreme Court of the United States from the judgment of this court in the above-entitled case. Ante, 239, present term. The application is based upon the ground that the constitutionality of secs. 454 and 455 of the Code of Laws for the District of Columbia is drawn in question. Section 250, par. 3, of the Judicial Code [36 Stat. at L. 1159, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 231] grants the right of appeal from this court to the Supreme Court of the United States “in cases involving the construction or application of the Constitution of the United States, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority.

A mere reference to the record and opinion in this case will disclose that the question raised was the constitutionality of a law of the District of Columbia, and not a general law of the United States. The right of appeal is confined to cases in which the constitutionality of general laws of the United States is involved, and not acts of Congress local to tlie District of Columbia. The application is denied.

Appellant moved to vacate the order refusing the writ of error, but the motion was overruled May 13, 1913.

Thereafter a writ of error was granted on application of the appellants to the Chief Justice of the Supreme Court of the United States, and the same was received June 7, 1913.