1 Ohio 170 (Ohio 1823), Gardener v. Woodyear
| Date | Invalid date |
| Docket Number | . |
| Citation | 1 Ohio 170 |
| Parties | GARDENER v. WOODYEAR |
| Court | Ohio Supreme Court |
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THIS was an action of debt upon a bond. The declaration was in the usual form; the defendants craved oyer and demurred. The condition of the bond is as follows: "Whereas, Thomas Woodyear hath this day obtained our writs of error and supersedeas to a judgment of the court of common pleas for Ross county, obtained by John Gardener, plaintiff, against the said Thomas Woodyear, defendant, April term, 1819. Now if the said Thomas Woodyear will prosecute our said writs to effect, and abide the judgment of the court thereupon had, then the above obligation to be void, otherwise to remain in full force and virtue."
The court of common pleas of Ross county gave judgment on the demurrer for the plaintiff, but assessed his damages to only fifteen dollars, a sum sufficient to pay the costs on the writ of error. The plaintiff appealed to the Supreme Court, and the question arising on the demurrer was reserved for decision here.
Judgment must be given for the plaintiff.
SYLLABUS
Bond for the prosecution of a writ of error good, where the condition is substantially that required by the statute, though its terms are not exactly followed.
The bond which the statute requires on a writ or error being allowed, must be conditioned for the payment of the condemnation money and costs in the common pleas, in case the judgment of the common pleas be affirmed in whole or in part.
The bond given in this case is conditioned that T. Woodyear shall prosecute the writs of error and supersedeas to effect, and abide by the judgment of the court thereupon had.
It is understood to be the opinion of this court, that a bond taken in pursuance of a statute, must conform to the provisions of the statute; and that any variance in the legal effect of it renders such bond null and void. This doctrine is expressly recognized in 3 Mass. 105; 1 Bibb 214; 1 Pennington 120, cited in American Digest, 70; 7 Cranch 287. The reason and policy of this doctrine is very fully and ably gone into by the court in the case cited from Bibb.
The language of the condition here is obviously variant throughout from the language of the statute. 18 Rep. 410, sec. 95. But that this bond is also variant in its legal import and legal effects, as well as in its language, is evident from several considerations.
1. The statute makes the liability of the securities to depend upon the condition of affirmance, in whole or in part, of the judgment of the common pleas by the Supreme Court. Their liability on this bond is made to depend on the condition of T. Woodyear's prosecuting the writs of error and supersedeas to effect, and his abiding by the judgment of the court thereupon. In the one case, the liability is conditioned or depends upon an act of the court; in the other, upon the acts of T. Woodyear. A forfeiture of the bond in the one case can only take place upon the affirmance of the judgment below; in the other, it may take place before and without such affirmance; as by an abatement of the suit in consequence of the death of the plaintiff in error, and no executor or administrator being appointed, or if appointed fails to prosecute; or by the writs being quashed. In either of these cases the liability of the securities would become fixed -- fixed by the non-performance of an act upon which a forfeiture is not made at all to depend by the statute, and by which very non-performance the securities in a bond conditioned according to the statute would be discharged from all liability; because the event, to wit: the affirmance of the judgment below, in such case, could not or does not take place, and without such affirmance they could not be held.
But by this bond the forfeiture and liability of securities is also made to depend upon an act of T. Woodyear posterior, as well as upon an act prior to that contemplated by the statute, to wit: his abiding by the judgment of the court upon the writ of error.
2. Upon a forfeiture of a bond taken pursuant to the statute, the securities become bound to pay the amount of the condemnation money and costs of the common pleas. On this bond they are bound, if bound at all, to satisfy the judgment of the Supreme Court, and this liability may be greater or less than that contemplated by the statute, according as the judgment of the Supreme Court may be. 1. It may be greater in this, that the Supreme Court may reverse the judgment below, and then go on and render such a judgment as the common pleas should have rendered. Such a reversal would be a discharge of the securities in a bond taken agreeable to the statute; but in this case, by such a bond as this, the securities would be bound to satisfy the judgment of the Supreme Court on the reversal; for the letter and spirit of the condition of this bond would hold them to the judgment, and by no legal rules of construction could their liability be avoided. 2. The liability on a bond like this may be less than the statute intended; as in the present case, the judgment being only for the cost accruing on the writ of error. The judgment for the costs is all the judgment which T. Woodyear was bound to abide by, and all for which the securities can be held, admitting the bond to be a valid one; there being no reversal and judgment for the debt, for that part of the entry or record relative to there being no error, and the affirmance of the judgment below is but the mere opinion of the court, giving no right of recovering anything from one to the other. This is evident: 1. Because the Supreme Court never render a judgment for anything more than the costs upon the writ of error, unless they reverse the judgment below, and here was no reversal. 2. Because the judgment below remained valid and in force, and was all the judgment necessary to enforce the collection of the debt on which it was rendered, and another judgment in the Supreme Court, for the same debt, between the same parties, would have been superfluous, and a thing unknown to the law. 3. Because the statute does not consider it in the light of a judgment. It considers an affirmance only as a matter of fact, or rather an event which may or may not take place. It makes it a condition simply, upon which the liability of the securities in a bond, taken agreeable to its provisions, is suspended. When it takes place, the extent of its operation is to remove the bar to the enforcement of the judgment below, and fix the liability of securities to pay that judgment. The statute recognizes its operation no further, and it is unnecessary that it should, for the object of its provisions is secured if the bond be properly taken. 4. It is nowhere defined to be a judgment, but, on the contrary, the idea of its being a judgment is expressly negatived in the books. 3 Blac. Com. 395, 396, and Jacob's Law Dic., Judgment.
3. If the...
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