PEASE et al. v. RATHBUN-JONES ENGINEERING CO.; PEASE v. SAME; PEASE v. HERRING, U. S. Marshal, et al., 228 F. 273

WALKER, Circuit Judge. By a decree rendered on January 9, 1914, in the case of Rathbun-Jones Engineering Company v. People’s Eight Company, it was adjudged that “plaintiff do have and recover of and from the defendant * * * the sum of six thousand, eight hundred and four dollars and ninety cents ($6,804.90),” and also interest and costs.

The decree further provided for the establishment of a lien on certain described machinery, as claimed in the petition, and that if the amount decreed against the defendant was not paid within 60 days from the' date of the decree the clerk issue process directing the marshal to sell the property subjected to.the lien.

An appeal was-taken from this decree, and a bond in the sum of $7,500, dated March 7, 1914, and with the condition that “if the said People’s Right Company shall prosecute its appeal to effect, and answer all damages and costs if it fails to make its plea good,” was made and approved; Clark Pease and Gust. Heye, Jr., signing as sureties. The result of that appeal was an affirmance by this" court of the decree appealed from. People’s Right Co. v. Rathbun-Jones Engineering Co., 218 Fed. 167, 133 C. C. A. 523.

On February 24, 1915, after the filing of the mandate from this court, the District Court entered a decx-ee which ordered that the mandate be made the judgment of the court, and further ordered “that the clerk o'f this court issue an order of sale as in the decree of this court provided, directed to the marshal of this district, commanding him to sell the property described in the judgment rendered herein to satisfy said judgment, interest, and costs, and it is further ordered that in the event said property does not sell for sufficient amount to satisfy said judgment, interest, and costs, the clerk of this court issue execution against the defendant and against the sureties on the appeal bond herein, Clark Pease and Gust.

Heye, Jr., for any deficiency that may remain.” Thereafter, on May 6, 1915, after the marshal’s sale of the property decreed subject to the lien declared, and the application of the sum realized on that sale — $1,500— to the satisfaction to. that extent of the decree, Clark Pease and the ad-ministratrix of the estate of Gust. Heye, Jr., deceased, filed a motion in the cause, which, after stating the proceedings therein, prayed that the above-mentioned order of February 24, 1915, in so far as it directs the issuance of execution against the People’s Right Company and against Clark Pease and Gust.

Heye, Jr., be set aside and held for naught. The motion stated many grounds for the granting of the relief sought. One of the grounds was: “That said order was entered by the court without pleading, without notice, and without hearing, against, to, or of these petitioners, or either of them.

And said order is in violation of the Constitution of the United States, in that it deprives your petitioners of their property without due process of law.” Among other grounds stated in the motion were the following: “That, said bond did not secure, and was not intended to secure, the payment of the amount of .said judgment, or any deficiency that might remain after the application of the proceeds of the sale of said property, but operated only as indemnity against damages and costs by reason of said appeal; and, in this connection, petitioners show that all the costs on said appeal and adjudged against them by- the Circuit Court of Appeals have been paid, and attach the receipt of the clerk of this court hereto to show the fact.” “That in its bill filed in this cause the complainant sought a judgment, as at law, for any deficiency that might remain due on said judgment after the application of the proceeds of the sale of said mortgaged property, and such judgment was not awarded it; and therefore its right to a deficiency judgment and execution therefor has been adjudicated against it, and such right, if it ever existed, is res ad judicata, which these petitioners now here plead in bar of any right of the plaintiff to have execution for such deñ-ciency.” "That the sale of said property, and the acceptance of the proceeds thereof, oiiera ted as a complete satisfaction of the decree aforesaid, and no cause of action now exists, if any ever existed, against your petitioners or either of them.” The case is here on separate appeals sued out from, respectively, the decree of February 24, 1915, from the decree overruling the above-mentioned motion, and from a decree overruling an application of Clark Pease for an injunction restraining the enforcement of the execution against him.

No stay of the execution having been ordered before the hearing in this court on the last-mentioned appeal, Clark Pease, under protest, paid the amount called for by the execution against him. It may he assumed that a surety on the supersedeas bond had the right to have the question of his liability thereunder adjudicated in an action at law on the bond in which he could have claimed a trial by jury. If he had this right, it was one he could waive by voluntarily submitting the question as to his liability to the court which rendered the decree on the appeal from which the bond was given.

That court could, at the request or with the consent of the surety, determine the liability on a bond which was part of the proceedings in a case which was or had been pending before it. .Several of the grounds stated in the motion made by the sureties distinctly invoke a ruling by the court on the question of the liability incurred by the sureties under the facts of the case. The court was invited to pass on the merits of the question, including matters which were set up as barring the asserted right of the plaintiff in the case to have a recovery against the sureties.

One against whom a liability is asserted in one court waives a special privilege he may have to require that another court be resorted to for the adjudication of the question of such liability by appearing in the court in which the liability has been asserted and invoicing a decision of that court on the merits of the controversy; and such waiver results from such conduct, though the submission of the controversy to that court for its decision is accompanied by the suggestion that that court had not acquired jurisdiction of the person so appearing in it.

One so making a general appearance in a court, and invoking its decision as to the merits of a claim made against him, cannot so limit or qualify the effect of his appearance as to retain the right of electing to abide by the decision if it is 'acceptable to him, or of not being hound by it if it is adverse to his. contention. St. Louis & San Francisco Railway Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; 24 Cyc. 156, 158.

It follows that the surety cannot sustain a complaint against a ruling as to his liability which was made at his instance, if what he was required to pay as a result of the ruling was no more than the bond made him liable for. For an appeal to operate as a supersedeas, and to stay execution, there must be taken “good and sufficient security that * * * the appellant shall prosecute * * * his appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs.” Rev. Stat U. S. §.1000 (Comp. St. 1913, § 1660); rule 13 of this court (ISO Fed. xxviii, 79 C. C. A. xxviii).

The bond in question was conditioned as 'required by the quoted provision of the statute. The decree which was so superseded was one for the payment of money. The breach of the condition of such a bond given in such a case entitles the. obligee to recover, not only compensation for 'the delay arising- from the appeal, but also tire amount of the decree appealed from, so far as’ the latter directs the payment of money by the appellant to the appellee. American Surety Co. of New York v. North Packing & Provision Co., 178 Fed. 810, 102 C. C. A. 258; Wood v. Brown, 104 Fed. 203, 43 C. C. A. 474.

The ruling made in the case of Kountze v. Omaha Hotel Co., 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609, is not applicable here. The bond under consideration in that case was given on an appeal from an ordinary foreclosure decree. It was distinctly pointed out in the opinion rendered in that case (107 U. S. 393, 2 Sup. Ct. 911, 27 L.

Ed. 609) that the decree appealed from was not a personal one for the debt which the mortgage secured, and that the personal liability of the debtor could have been enforced while the appeal from tire foreclosure decree was pending. .Not so here, where tire effect of the bond under consideration was to supersede the decree as a whole, not merely the part of it which decreed a sale of the property found to be subject to a lien, but the part of it which ordered the payment of money by the appellant to the ap-pellee.

Nothing contained in rule 13 of this court can be given such effect as to prevent the bond standing as security for the superseded decree for the payment of money, at least in so far as that decree is not otherwise secured.

The provision of that rule that “such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and cost and interest on appeal,” by no means has the effect of preventing a bond which superseded such a decree as the one under consideration, which was for the payment of money and also for a lien on property ordered to- be sold and the pn> ceeds applied on the decree, standing as security for the decree for money so far as it remained unsatisfied after the application of the proceeds of the property ordered to be sold.

That rule undertakes to furnish a guide for' determining- the amount of supersedeas bonds in specified cases, and shows that the amount is to be more or less according as the appellee or defendant in error may be liable to- be subjected to more o.r less damage by the superseding or suspension of the execution of the decree or judgment in his favor; but certainly it does not undertake to deprive a supersedeas bond in any case of the effect given to it by the statute of subjecting the principal and sureties to liability “for all damages and costs” which the appellee or the defendant in error may sustain if the appellant or plaintiff in error “fail to malee his plea good.” The liability on a bond which operated to suspend such a decree as the one under consideration would not extend to “all damages,” if it did riot cover so much of the decree for the payment of money as was left unsatisfied after the application to the decree of the amount realized on the sale oí property subjected to a lien and ordered to be sold.

There is nothing for the surety to complain of in the fact that, before his liability was sought to be enforced, the amount of the decree which had been superseded was reduced by the application to it of the amount realized on the sale of the property decreed to be sold. The jurisdiction of the court was not exhausted by the rendition of the decree in question, but continued until the decree was satisfied, except in so far as its right to exercise its power to enforce the decree was suspended during the pendency of the appeal. Wayman v. Southard, 10 Wheat. 1, 23, 6 L. Ed. 253; Riggs v.

Johnson County, 6 Wall. 166, 187, 18 L. Ed. 768; Central National Bank v. Stevens, 169 U. S. 432, 464, 18 Sup. Ct. 403, 42 L. Ed. 807. The part of die decree which remained unsatisfied after the execution of the part of it which decreed the sale of property and the application of the proceeds of the sale was “solely for the payment of money.” The appropriate final process for the execution of the decree, so far as it remained unexecut-ed when the order complained of was made, was such a writ of execution against the defendant as the motion sought to forbid the enforcement of. Equity rule 8 (198 Fed. xxi, 115 C.

C. A. xxi). A part of the command of the mandate issued from this court to the trial court upon the affirmance of the latter’s decree was: “You, therefore, are hereby commanded that such execution and further proceedings be had in said canse as according to right and justice, and the laws of the United States, ought to be bad, the said writ of error [appeai ?] notwithstanding. ” Plainly it was competent for the court to issue against the defendant in the cause such an execution as was issued.

And the surety’s submission to the court of the question as to his liability on the supersedeas bond conferred on the court the right to decide the question and to provide for the enforcement of its decision by proper process.

As at the time that decision was rendered the unexecuted part of the decree which had been superseded was “solely for the payment of money,” and as it was for that amount only that execution against the surety was allowed to be enforced, the decree having already been satisfied in part by the application of the proceeds of the sale of the property subjected to a lien and ordered to be sold, the result of what the court did was to allow the execution of appropriate process against the surety to be proceeded with, to the end of coercing the payment by him of no more than the amount which the supersedeas bond obligated him to pay.

A surety on the bond cannot sustain a complaint against action of the court having this effect only. It follows that the decrees presented for review by the two appeals first above mentioned as now pending are affirmed. The satisfaction of the execution, the injunction of the enforcement of which was the sole relief sought in the case in which was rendered the other decree which was appealed from, leaves nothing for decision on that appeal; and that appeal is dismissed.