American Surety Co. of New York v. Baldwin

• Citation: 55 F.2d 555
• Decision Date: 23 February 1932
• Docket Number: No. 6566.,6566.
• Parties: AMERICAN SURETY CO. OF NEW YORK v. BALDWIN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

55 F.2d 555 (1932)

AMERICAN SURETY CO. OF NEW YORK v. BALDWIN et al.

No. 6566.

Circuit Court of Appeals, Ninth Circuit.

January 18, 1932.

Rehearing Denied February 23, 1932.

Richards & Haga, Martin & Martin, Frank Martin, Oliver O. Haga, and McKeen F. Morrow, all of Boise, Idaho, for appellant.

James F. Ailshie, Jr., and J. R. Smead, both of Boise, Idaho, for appellees.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

WILBUR, Circuit Judge.

This is an appeal from an order of the District Court denying an injunction pendente lite and dismissing appellant's bill in equity on the ground that the facts stated therein did not entitle appellant to relief. The bill prays for an injunction to prevent defendants, hereinafter referred to as appellees, from enforcing a judgment entered in their favor and against appellant for the sum of $22,357.21 in the District Court for the Third judicial district of the state of Idaho. The judgment in question was entered against appellant without notice upon a supersedeas bond given by it to stay execution pending an appeal to the Supreme Court of Idaho. It is unquestioned that such a judgment may be entered in that manner, if justified by the terms of the bond. It was expressly so held by this court in United States Fidelity & Guaranty Co. v. Ft. Misery Highway District, 22 F.(2d) 369, with reference to such a bond also given in the state of Idaho. The controversy in this case arises out of the fact that there are two defendants in the action in which the supersedeas bond was given; the Singer Sewing Machine Company and one Ed Anderson who was claimed to be an employee of the Singer Sewing Machine Company in an action to recover damages for personal injuries. Judgment was rendered against both defendants in that action, and an appeal was taken by both. The appeal of the Singer Sewing Machine Company was sustained, and the judgment against it reversed, while the judgment against its codefendant, Anderson, was affirmed. Thereafter the trial court, upon motion of the plaintiff therein, without any notice whatsoever to the surety company, appellant herein, entered a judgment against it for the full amount of the judgment against Anderson, together with interest and costs. Claim is made here by appellees that the supersedeas bond in question was given to stay the whole judgment against both defendants in that action, and therefore that the entry of judgment against the surety company without notice was proper. On the other hand, it is claimed by the surety company that the bond was given solely on behalf of the Singer Sewing Machine Company and that when the appeal of that company was successful its obligation upon the bond ceased. In view of this controversy, we will hereinafter set out the bond in full. Immediately after the entry of the judgment against the appellant in the aforesaid action, appellant moved the District Court to vacate the judgment. The motion was granted and an order entered vacating the judgment. From this order, an appeal was taken by the plaintiffs therein, appellees here, to the Supreme Court of Idaho, which court, reversed the order of the District Court setting aside the judgment against the appellant and reinstated the said judgment. Baldwin v. Anderson, 299 P. 341, 344. This decision was based on the proposition that the trial court had no jurisdiction to set aside its judgment under the circumstances, and that the remedy of the surety company was by an appeal from the judgment. In the meantime, the period for appeal had expired under the Idaho statute, unless that period was tolled by the pendency of the proceeding to vacate the judgment and the appeal therefrom. After the decision by the Supreme Court of Idaho, holding that the order of the trial judge vacating the judgment was unauthorized, an appeal was taken from the judgment by the appellant herein, but unless the time for taking that appeal was tolled by the proceeding above mentioned it was too late. Appellant calls attention to a later decision rendered by the Supreme Court of Idaho in a similar case, holding that the pendency of proceedings to vacate a judgment and of an appeal from the order vacating the judgment did not toll the statute as to the time of appeal from the judgment itself, and that an appeal taken after the expiration of the statutory period was too late. Mountain States Implement Co. v. Arave, 2 P.(2d) 314.

Appellant has also filed a petition for a writ of certiorari in the Supreme Court of the United States to review the judgment of the Supreme Court of Idaho on the appeal from the order setting aside the judgment in question. At the time of this opinion, the petition has not been acted on.

The supersedeas bond herein referred to is as follows:

"In the District Court of the Third Judicial District of the State of Idaho, in and for the County of Ada.

"Vivian F. Baldwin and E. R. Baldwin, Plaintiffs, vs. Singer Sewing Machine Company, a corporation, and Ed Anderson, Defendants.

"Undertaking on Appeal.

"Whereas the defendant, Singer Sewing Machine Company, a corporation, in the above-entitled action has appealed to the Supreme Court of the State of Idaho from the judgment made and entered against it in the above-entitled action and in the above-entitled court in favor of the plaintiffs in said action on the 31st day of May, 1928, for the sum of Nineteen Thousand Five Hundred ($19,500) Dollars and for Seventy-three and 70-100 ($73.70) Dollars costs in said suit, making a total of Nineteen Thousand Five Hundred Seventy-three and 70-100 ($19,573.70) Dollars, and from the whole of said judgment;

"And whereas, the said appellant, Singer Sewing Machine Company, a corporation, is desirous of staying the execution of said judgment so appealed from;

"Now, therefore, the undersigned American Surety Company, a corporation authorized to, and doing business in the State of Idaho, in consideration of the premises and of such appeal on the part of said appellant, Singer Sewing Machine Company, a corporation, does hereby acknowledge itself firmly bound in the sum of Twenty-five Thousand ($25,000.00) Dollars, gold coin of the United States, that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant will pay in gold coin of the United States of America, the amount directed to be paid as to which said judgment shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the said appellant does not make such payment within thirty days from the filing of the remittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of the respondents in their favor and against the undersigned surety for the said sum of Nineteen Thousand Five Hundred Seventy-three and 70-100 ($19,573.70) Dollars, together with the interest that may be due thereon and the damages and costs which may be awarded against the said appellant, Singer Sewing Machine Company, upon the appeal.

"In witness whereof, the said American Surety Company has caused its name and seal to be attached hereto by its proper officers and agents at Boise, Idaho, this 28th day of August, 1928."

The Supreme Court of Idaho, in passing upon the validity of the order of the District Court vacating the judgment against appellant herein, refused to consider the question as to whether or not the supersedeas bond or undertaking applied only to such judgment as might be affirmed against the Singer Sewing Machine Company, or whether it applied to the entire judgment. The court in that regard stated as follows: "The question or issue presented was: Did the surety company, in its undertaking, become a party liable for every part of the judgment appealed from which might be affirmed by the Supreme Court, or did it stipulate only as to such judgment or part thereof as might be affirmed against the Singer Sewing Machine Company? To answer this question the court must look to the bond. The issue required a construction of the bond as a whole. The trial court had jurisdiction of this question. It construed the bond in favor of appellants and against the surety company. It was not only in that court's power, but it was its duty, to decide the question submitted. In re Clerf, 55 Wash. 465, 104 P. 622; Winfrey v. Benton, 25 Okl. 445, 106 P. 853. Whether it decided rightly or wrongly, its decision was a judgment which could be reviewed for error, if there was error, only by this court on appeal. Bunnell & Eno, etc., Co. v. Curtis 5 Idaho, 652, 51 P. 767, supra; Taylor v. Hulett 15 Idaho, 265, 97 P. 37, 19 L. R. A. (N. S.) 535, supra; Wyllie v. Kent 28 Idaho, 16, 152 P. 194, supra; United States Nat. Bank v. Eldridge 49 Idaho, 363, 288 P. 416, supra. On appeal the question could be re-examined. The undertaking cannot be examined and its legal effect as to this issue be determined by us on this appeal. We may consider it only in so far as to determine whether its wording is such that it afforded color of legal right in appellants to judgment. That is to say, whether appellants' motion presented a legitimate question and was not an imposition or fraud upon the court. We think, regardless of what our construction of the bond might be, it cannot be said appellants held no right to submit the question. Nor can it be said that such submission was a fraud upon the court and on that ground its judgment was void."

Justice Budge, however, dissented from the conclusion of the court and gave his view as to the proper interpretation of the bond in question. As we fully concur in the views expressed by Justice Budge with reference to the nature and effect of this bond, we quote as follows from his opinion:

"The supersedeas bond upon its face and throughout its contents shows clearly that it was given to stay execution upon the judgment and the whole thereof entered...