Ownbey v. Morgan
| Decision Date | 21 March 1919 |
| Citation | 105 A. 838,30 Del. 297 |
| Court | United States State Supreme Court of Delaware |
| Parties | OWNBEY v. MORGAN et al |
June 20, 1917;
Ward Gray & Neary, of Wilmington, for plaintiff in error.
Saulsbury Morris & Rodney, of Wilmington, for defendants in error.
Before CURTIS, Ch., and CONRAD, RICE and HEISEL, JJ., sitting.
CURTIS Ch., after stating the facts, delivered the opinion of the court: The motions above referred to have been argued on briefs submitted, and the decision of them has no bearing on the merits of the questions raised by the writ of error.
First as to additional security. The motion for additional security is that the plaintiff in error be required to give to the defendants in error a bond for at least $200,000, in place of the bond for $6,000, claiming that by the Constitution the plaintiff in error in order to stay proceedings below must give sufficient security to pay the judgment recovered below by the defendant in error which was $200,168.57, as the condemnation money.
By the Constitution a plaintiff in error or appellant, in order to stay proceedings in the court below pending the hearing of the case in the appellate tribunal must give sufficient security that he will (1) prosecute his writ of error or appeal, and if he fails in changing the decision of the court below, (2) will pay the condemnation money, if there be condemnation, or (3) if there be no condemnation money will otherwise abide the decree appealed from, or abide the judgment claimed to be erroneous.
What is condemnation money is clear. It is the amount of the judgment below where there is a general judgment finding that the defendant must pay the plaintiff a sum of money, which is collectible from any property of the defendant that can be reached by the proceeds of the law, whether the sum so found to be due is a debt or damages. Where the defendant below is not condemned by the judgment of the court below to pay money to the plaintiff below, as where there was a decree for specific performance, or a judgment in an ejectment suit, then the duty of the unsuccessful appellant is to perform the duty imposed by the decree or judgment below, and so abide thereby. If it was a decree for specific performance, then to abide is to do whatever was commanded, and for failure to do so the remedy was on the supersedeas bond, in addition to any other relief that the court below could give to secure enforcement of its decree. To meet this large class of remedies where there was no condemnation money the court said that the appellant must give sufficient security to abide, i.e., perform, the decree or judgment below.
The constitutional provision seems to me to be a very simple recognition by the makers of the Constitution of the variety of the relief granted to suitors, and that suitable language was used to distinguish between them in providing for protection pending appeal.
What is "sufficient security" within the provisions of the Constitution? That depends on the nature of the cause and the judgment or decree there rendered.If it is a general judgment for a sum of money, whether recovered as a debt or damages, to obtain which from the defendant the plaintiff may seize and sell all of the property of the defendant, then clearly the only security which will be sufficient to protect the plaintiff below pending the appeal will be a bond at least equal to the amount of the judgment and interest, and there must be such surety on the bond as will enable the plaintiff below to look entirely to the surety for protection. This is all clear.
But there are a great variety of reviewable adjudications, other than money judgments. There are appeals from decrees in chancery, requiring specific performance of a contract, injunctions preventive and mandatory, and the like where there is no direction to pay money, but to do or refrain from doing some act. There are replevin suits where the judgment is for a return of the property; ejectment suits to recover possession of land, where there is no money judgment and no order to pay money at all. There are criminal cases, mandamus, quo warranto, and other remedies afforded for legal rights where there is no order to pay money. In all of these cases what is the "suflicient security" which the party successful below needs pending the suspension of his rights to have the thing which the court below said he was entitled to have? There being no condemnation money in any of these cases, some other method of determining the sufficiency of security than a consideration of an amount of money which the court below awarded.
The rule of the Supreme Court was evidently intended to provide a guide to those who have the duty of fixing in particular cases what security would be sufficient. So the cases are arranged in the rule about as they are in the Constitution, viz. in two general classes; one where there was a judgment for the recovery of money, and those where there was not.It distinguishes, for instance, between a judgment on one hand and replevin or real actions. The rule does not violate the Constitution even if it does not require that every supersedeas bond shall be conditioned to pay condemnation money, for there are, as explained above, cases where there is no condemnation money. By the rule the Supreme Court has done no more than suggest to themselves principles applicable in determining what in each of the several classes of cases mentioned is sufficient security.
What is sufficient security for the plaintiffs below in the case at bar depends on the character of the right enforced and the relief given. They had an attachment of certain shares of stock which they had a right to sell in order to realize a sum of money found by the court below to be due them. They had no right to proceed against any other property to collect payment. They had a lien on, or right in, that particular property which could not be dislodged in any way pending the appeal, and if the defendant below failed in his appeal their rights as against the property would be the same then as at the time they obtained judgment. To give the plaintiffs below sufficient security did not require that they be indemnified by a bond, the amount of which was based on the amount of money which they were entitled to recover by a sale of those shares of stock only, and with no right to reach any other property for that purpose, i.e., they were not entitled to a bond based on the amount of the judgment treating it as condemnation money. Yet such is the contention of the defendants in error in the motion for further security. As pointed out by counsel for the plaintiff in error, this would give the plaintiffs below more than they obtained by their attachment in the court below.
It is not claimed that since the bond was given there has been a change of circumstances which has diminished the security already given, nor indeed was any other matter urged except that the rule of court permitting security to be given for a less sum than that indicated by the sum of money awarded below violated the Constitution of the State.
The court is unanimously of the opinion that, for the reasons above stated, the rule of court is in harmony with the Constitution, and that the motion for further security should be denied.
Secondly, the motion to strike out part of the matter in the transcript. The transcript contains all of the entries, written motions, decisions, orders and judgments which occurred in the course of the cause below as hereinabove referred to. The defendant in the court below was there denied a right to appear, plead and defend in the action because he did not give security as required by the statute, and the plaintiffs below recovered a judgment which entitled them to an order for the sale of the property attached. At several steps in the cause the defendant attempted to secure the rights to appear, plead and defend, each of which steps led up to the final decision of the cause, the entry of the judgment, and it is not necessary at this time to consider the steps separately.
A writ of error cannot be taken until after final judgment. Finality of decision is essential to a right of review as a rule of convenience, to avoid delays from separate appeals of each of the steps in the cause as they occur. Therefore, the right to review these several steps is held in abeyance until the cause has reached a stage when all of the appealable steps can be reviewed in a single appeal involving the whole cause.
This general principle of appellate jurisdiction is so fundamental that it hardly needs the support of citation of authorities. But the following may be cited from states where it has been declared to be the law independent of statute: Steenrod v. Wheeling, etc., Co., 25 W.Va. 133; Lloyd v. Kyle, 26 W.Va. 534; Allerton v. Eldridge, 56 Iowa 709, 10 N.W. 252, and citing other cases in Iowa; White v. Atchison, etc., Co., 74 Kan. 778, 88 P. 54, 11 Ann.Cas. 550; Baker v. Baker, 10 Cal. 527; Nelson v. Brown, 59 Vt. 600, 10 A. 721; Comins v. Turner, etc., Co., 140 Mass. 146, 3 N.E. 304; Morse v. Rankin, 51 Conn. 326; Emry v. Parker, 111 N.C. 261, 16 S.E. 236; and many other cases cited in notes to 2 Cyc. 586, 2 Ency. of Pleading & Practice, 90; and 2 Standard Ency. of Procedure, 170. In 3 Corpus Juris, § 256, p. 432, and 4 Corpus Juris, § 2582, p. 680, there is a multitude of citations.
The judgment entered below in this case is, of course, a final one. A decision is final in this sense when the successful party has obtained his rights either by the direct operation of the decree itself, or by means of proceedings of a ministerial character to enforce execution of it. As soon as the final judgment is entered, the unsuccessful party may then have reviewed all the successive steps in...
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