Fidelity & Deposit Co. of Maryland v. Davis

• Decision Date: 01 May 1942
• Docket Number: No. 4914.,4914.
• Citation: 127 F.2d 780
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. DAVIS.
• Court: U.S. Court of Appeals — Fourth Circuit

127 F.2d 780 (1942)

FIDELITY & DEPOSIT CO. OF MARYLAND v. DAVIS.

No. 4914.

Circuit Court of Appeals, Fourth Circuit.

May 1, 1942.

M. F. Trader, of Lynchburg, Va., and S. S. Lambeth, Jr., of Bedford, Va., for appellant.

Philip H. Hickson, of Lynchburg, Va., and duVal Radford, II, of Bedford, Va. (Landon Lowry, of Bedford, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a summary judgment entered by the court below in an action on a bond given to stay proceedings pending application to the Supreme Court of the United States for a writ of certiorari, which was denied by that court. Sprinkle v. Davis, 62 S.Ct. 90, 86 L.Ed. ___. The judgment was for the amount of the judgment in the suit in which proceedings were stayed with interest and costs in accordance with the terms of the bond. The defense asserted was that bond securing the judgment was erroneously required by the District Judge as a condition of the stay of proceedings, that bond should have been required only for damages and costs, that recovery under the bond given should be so limited notwithstanding its provisions, and that the damages recoverable should be limited to the damage resulting from the delay due to the stay of proceedings and should not be held to embrace the payment of the judgment stayed.

The admitted facts, upon which the summary judgment was entered, are as follows: On June 28, 1940, the plaintiff, Mose E. Davis, after two other recoveries which were reversed by this Court (see Sprinkle v. Davis, 4 Cir., 104 F.2d 487, and Id., 4 Cir., 111 F.2d 925, 128 A.L.R. 1101), recovered judgment against one Ralph Elliott Sprinkle in the court below for the sum of $8,500 damages resulting from personal injuries sustained in an automobile accident and costs. That judgment was affirmed by this Court on January 6, 1941 (Sprinkle v. Davis, 4 Cir., 115 F.2d 625), and on February 17, 1941, a petition for rehearing was denied. 117 F.2d 938. Mandate duly issued to the court below on February 25, 1941. On May 16, Sprinkle obtained from a Justice of the Supreme Court an extension of 60 days for filing petition for certiorari, which was filed on July 14, 1941. No supersedeas bond had been given to stay proceedings for collection of the judgment pending appeal; and on June 3, 1941, plaintiff filed suit against Sprinkle and an automobile liability insurance company in an attempt to collect the judgment from the company. To stay these proceedings pending application for certiorari, Sprinkle applied to the District Court for a stay order and tendered bond conditioned to pay all damages and costs which plaintiff might sustain by reason of the stay. The court declined to accept the bond as tendered but granted the stay upon the filing of a bond containing the additional clause, "which said damages and costs shall include the principal amount of the judgment heretofore recovered as aforesaid in the sum of $8,500, together with all interest and costs which have heretofore or may hereafter accrue thereon". Sprinkle duly excepted to the refusal of the bond as tendered and to the requirement that bond securing the judgment be executed as a condition of the stay. The application for certiorari was denied; and, upon failure of Sprinkle to pay the judgment stayed, this suit was instituted for recovery on the bond.

On these facts, we think that judgment was properly entered on the bond for the amount of the judgment with interest and costs. It is true that the statute under which the bond was required, 28 U.S.C.A. § 350, provides that the bond shall be conditioned to "answer for all damages and costs which the other party may sustain by reason of the stay"; but we think it clear that, where the stay acts as a supersedeas and the judgment stayed is for the recovery of money and is not otherwise secured, the recovery under a bond so conditioned is not limited to compensatory damages arising from the stay but should embrace also the amount due by the terms of the judgment. This rule is well settled in the case of bonds given under the statute relating to writs of error and appeals. Catlett v. Brodie, 9 Wheat. 553, 554, 6 L.Ed. 158; Jerome v. McCarter, 21 Wall. 17, 29, 22 L.Ed. 515; Rosenstein v. Tarr, C.C., 51 F. 368, 370, affirmed 1 Cir., 53 F. 112; Wood v. Brown, 8 Cir. 104 F. 203, 206; Pease v. Rathbun-Jones Engineering Co., 5 Cir., 228 F. 273, 278, affirmed 243 U. S. 273, 280, 37 S.Ct. 283, 61 L.Ed. 715; Martin v. Clarke, 7 Cir., 105 F.2d 685, 124 A.L.R. 497; Louisville Trust Co. v. National Bank of Kentucky, D.C., 3 F.Supp. 925, 926. And there is the same reason to apply it to bonds given under the statute relating to stay pending application for certiorari that exists in the case of bonds given in connection with other writs the effect of which is to stay proceedings. A writ of certiorari in a case such as this is in the nature of a writ of error. Harris v. Barber, 129 U.S. 366, 369, 9 S.Ct. 314, 32 L.Ed. 697. And a stay of proceedings pursuant to the statutory provision precludes the enforcement of the judgment as effectually as the granting of the writ.

The defendant relies upon Kountze v. Omaha Hotel Co., 107 U.S. 378, 2 S.Ct. 911, 27 L.Ed. 609; but that case, when rightly understood, is authority against rather than for its position. The bond there was given in an appeal in a foreclosure suit, and the court carefully distinguished such a case from one in which judgment or decree directing the payment of money was superseded by writ of error on appeal. As said by the late Judge Walker in Pease v. Rathbun-Jones Engineering Co., supra 228 F. 278: "The ruling made in the case of Kountze v. Omaha Hotel Co., 107 U.S. 378, 2 S.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 S.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 the foreclosure decree was pending."

If supersedeas bond had been given to stay execution pending appeal pursuant to rules 62(d) and 73(d), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it may well be that bond should have been required only to cover compensatory...