185 F. 209 | N.D.N.Y. | 1911
The plaintiff recovered judgment in the Circuit Court on the 25th day of February, 1902, against the defendant for $250 damages and $185.36 costs, and the defendant took an appeal therefrom to the Circuit Court of Appeals, where the judgment was affirmed, with $31.70 costs of appeal, and thereupon the judgment of that court was made the judgment of the Circuit Court on the 29th day of February, 1904. Np part of the costs in either court has been paid, although execution was issued and returned unsatisfied. The contention of the Fidelity & Deposit Company of Maryland, surety for the defendant and appellant on the bond hereafter referred td, is that it is liable only for the costs of the appeal, $31.70, and interest. The bond on appeal from such judgment was for $500, and dated July 14, 1902. The bond, duly executed, recited the above judgment of the Circuit Court and proceeded :
“And whereas, the above-named defendant bath prosecuted bis appeal to the United States Circuit Court of Appeals for the Second Circuit to reverse in part the final judgment and decree rendered in the above-entitled suit by the Circuit Court of the United States for the Northern District of New York: Now, therefore, the condition of this obligation is that if the above-named Dennis Daley shall prosecute his said appeal to effect and answer all costs that may be adjudged or awarded against him, if he shall fail to make good his plea, then this obligation to be void; otherwise to' remain in full force and virtue.”
Daley did prosecute his appeal, but having been defeated, and the judgment below affirmed, he has failed to pay the costs in the Circuit Court of Appeals, and also those awarded in the Circuit Court, and as to which the judgment was affirmed. The obligation of the bond is to “pay all costs that may be adjudged or awarded against him.” It is not limited in terms to the costs awarded against him in the Circuit Court of Appeals as costs of' the appeal, nor is it, in express terms, made to cover the costs awarded in both courts. However, “all costs adjudged or awarded against him” (said Daley) are to be paid.
In Expanded Metal Company et al. v. Bradford et al. (C. C.) 177 Fed. 604 (citing The Schooner Joseph B. Thomas (D. C.) 158 Fed. 559), Judge Holland held that such a bond covers the costs in both courts. To the same effect are Persons v. Wirgman (C. C.) 140 Fed. 207, and McClaskey et al. v. Barr et al. (C. C.) 79 Fed. 408, 413. The final judgment or order entered on the mandate of the Circuit Court of Appeals not only awarded against the defendant the costs in the Circuit Court of .Appeals, but confirmed the award against him of the costs in the Circuit Court, and so the costs in both courts were finally awarded against him and come within the language “all costs adjudged or awarded against him.” The bond was not limited to costs
The bond is under seal, and I do not think that the statute of limitations applies to prevent a recovery on the bond. It is said in the opposing affidavits, on information and belief, solely, and without stating any sources of information or grounds of belief that the judgments have been assigned to Mosher & Curtis, who were solicitors for the plaintiff. This is not proof of such assignment. However, the sum secured to be paid by the bond is to be paid to “the said William H. Young, his certain attorney, executors, administrators, or assigns,” etc. The statute of limitations is no defense to this application. By section 382, Code of Civil Procedure, certain actions not on sealed instruments, or on judgments of courts of record, must be brought within six years. Limitations of a shorter period are prescribed in sections 383 to_ 387, but none of them apply to actions upon sealed instruments or on judgments of courts of record. Section 388 provides that the period of limitation in actions not provided .for in the preceding sections shall be ten years. Therefore the ten-year period applies here. Of course, this bond was not security for the damages awarded.
The motion is granted, but Young, Mosher & Curtis, and Prank C. Curtis should unite in a satisfaction of the claim and tender same.