104 F. 203 | 8th Cir. | 1900
Each party to this action has sued out a writ and made many specifications of error, but they present but two questions. The obligee in a bond filed to work a supersedeas of an order to issue an execution upon a decree in chancery attacks the judgment in bis favor thereon because it is limited to interest on the amount due him under the decree from the time the order was made until it was affirmed, while be claims it should have covered the entire amount due him under the decree. The surety on the bond assails the judgment against him on the ground' that the court erroneously held that be was n'ot discharged by the subsequent levy of a writ of execution upon real estate of one or more of the defendants in the decree, and the release of that levy without a sale. These are the facts which present these issues: On July 16, 1894, a decree was rendered in the United States circuit court for the district of Colorado to the effect that Margaret Billings, James O. Wood, Thomas E. Wood, Hiram H. Wood, and William Wood, as heirs of William J. Wood, should recover of Jerome B. Wheeler and the Aspen Mining & Smelting Company a certain amount of money and interest from that.date; that Wheeler and the.mining company should pay this amount in 30 days; that in default of such payment execution, therefor should issue in the ordinary form, and that the sum so recovered should be divided among the heirs of William J. Wood, named, according to the provisions of the statutes of descent of the state of Colorado. On August 27, 1894, a transcript of this decree was filed for record with the clerk and recorder of the county of Pitkin, in the state' of Colorado, and thereby became a lien upon the real estate of the defendants situated in that county. On February 27, 1897, the circuit court, on the application of the plaintiff James O. Wood, ordered its clerk to issue an execution to the marshal of the district of Colorado commanding him to satisfy and discharge the decree, so far as the rights of James 0. Wood were concerned, out of the property, goods, chattels, and effects of Jerome B. Wheeler and the Aspen Mining & Smelting Company. Thereupon the Aspen Alining & Smelting Company filed a bond, executed by itself as principal and by David R. C. Brown and Benjamin Ferris as sureties, whereby they bound themselves to the plaintiff James O. Wood in the sum of $15,000 upon the condition “that, if the said the Aspen Mining & .Smelting Company shall prosecute said appeal to effect, and answer all damages and costs if it fails to make good its plea, then the .above obligation to be void; else to remain in full force and virtue”; .and prayed that an appeal to this court from.the order of February .27, 1897, might be allowed to it, and that its appeal might be made
The-first question to be considered is whether or not the surety on this bond was discharged by the release of the levy of the writ of execution upon the real estate of the defendants named in the decree situated in Pitkin county. It may be conceded that if the obligee in a bond obtains control of money or property of the principal to which he is not otherwise entitled, and which he may lawfully apply to the discharge of the principal’s obligation to him, and then voluntarily surrenders or releases it, so that the surety loses the benefit of the security which it furnishes, the latter is discharged from liability on the bond to the extent of the value of the property thus surrendered, Brandt. Sur. § 434; Thomas v. Wason, 8 Colo. App. 452, 46 Pac. 1079. But this principle has no application to the facts of this case. The only property upon which the execution of James O. Wood was ever levied was real estate of one or both of the defendants named in the decree, situated in Pitkin comity, Colo. That levy was made and discharged in the year 1899. Under the laws of Colorado the lien of a judgment or decree may be fastened upon the real estate of the defendants therein by its record. In the case at bar the lien of this decree was fastened upon the lands of Wheeler and the mining
Turning to the question of the measure of the damages for the breach of the condition of the bond, we enter upon its consideration from the established proposition that a bond which works a supersedeas, and is'conditioned, as required by the Revised Statutes, to “answer all damages and costs” resulting from the allowance of a writ of error to reverse a personal judgment for money, or from an appeal from a decree which directs the payment of money from the appellant to the appellee, entitles the obligee to recover upon its breach not only compensatory damages for the delay arising from the stay of the execution or other process, but also the amount due him by the terms of the judgment or decree. Rev. St. §§ 1000, 1007, 1012; rule 29, Sup. Ct.; rule 13, C. C. A., 31 C. C. A. clii., 90 Fed. liii.; Catlett v. Brodie, 9 Wheat. 553, 6 L. Ed. 158; Stafford v. Bank, 16 How. 135, 139, 14 L. Ed. 876; Jerome v. McCarter, 21 Wall. 17, 22 L. Ed. 515; Hotel Co. v. Kountze, 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609; Rosenstein v. Tarr (C. C.) 51 Fed. 370; Tarr v. Rosenstein, 3 C. C. A. 466, 53 Fed. 112. Every reason which can be urged in support of the position that the measure of damages for the breach of a bond on an appeal from a decree for the payment of money which works a supersedeas includes the amount due under the decree pleads with equal cogency for the same measure for the breach of a like
The judgment must be reversed, and the case must be remanded to the court below, with directions to enter judgment for the plaintiff James O. Wood and against the defendant David R. O. Brown for the amount which they have agreed by their written stipulation in this record is due to him under the decree, $8,847.03, and interest thereon at 8 per cent, per annum from July 16, 1894; and also for $20 costs of this court on the appeal from the order to Issue the execution, and interest thereon at 8 per cent, per annum from December 13, 1897, and for the costs in this suit. It is so ordered.