Aetna Casualty Co. v. Supervisors

• Citation: 160 Va. 11
• Case Date: March 30, 1933
• Court: Supreme Court of Virginia

Page 11

160 Va. 11 AETNA CASUALTY AND SURETY COMPANY OF HARTFORD, CONNECTICUT
v.
BOARD OF SUPERVISORS OF WARREN COUNTY, NATIONAL SURETY COMPANY OF NEW YORK, ET ALS. Supreme Court of Virginia, Richmond. March 30, 1933.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. COUNTIES — Treasurer — Bond and Sureties — Relief of Sureties. — Courts have no general common-law or statutory jurisdiction to relieve sureties from their liability on official bonds or to require officers to give new or additional bonds. Such jurisdiction as they have in these particulars is a special statutory jurisdiction.

2. COUNTIES — Treasurer — Bond and Sureties — Relief of Sureties — Sections 5771, 5773, 280 and 281 of the Code of 1930. — Sections 5771, 5773, 280 and 281 of the Code of 1930 do not confer upon the court power to relieve sureties on official bonds from liability thereon. They merely empower the court to enter an order requiring an officer to give a new bond, and, if he fails to comply with such order, to remove him from office. Such orders may result in relieving the surety, in whole or in part, from future liability on the official bond of the officer; but the court has no inherent power to grant the surety relief from his suretyship. The only relief the surety can procure, by court order or otherwise, is such as follows as a legal consequence from the giving by the officer of a new bond or from his removal from office.

3. COUNTIES — Treasurer — Bond and Sureties — Relief of Sureties — Sections 5771, 280 and 281 of the Code of 1930. — If the court, in pursuance of either section 5771 or section 280 of the Code of 1930, orders the officer to give a new bond, and it is given and accepted, then by virtue of section 281 of the Code of 1930 the sureties on his former bond are relieved of all future liability thereon; but the court is not empowered to enter any order which will relieve the sureties on the existing bond from future liability thereon until and unless a new bond is given and accepted.

4. COUNTIES — Treasurer — Bond and Sureties — Relief of Sureties — Removal from Office. — Removal from office relieves the sureties on the bond of the officer from liability for any future acts done by the officer in his official capacity, because it terminates his official status; but it leaves the sureties liable for any subsequent misappropriation of property or funds which were in the hands of the officer at the time of his removal.

5. COUNTIES — Treasurer — Bond and Sureties — Relief of Sureties — Order Void — Case at Bar. — In the instant case an order purporting to relieve a surety of future liability on the official bond of a county treasurer before a new bond was given and accepted, was an order which the court was without power or jurisdiction to enter under any circumstances, and was void on its face, and ineffective for any purpose whatever.

6. COURTS — Jurisdiction — Court Exercising Special Statutory Powers. — Where a court is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void. In such a case, even though the court may have jurisdiction of the general subject-matter and of the parties, an adjudication with reference thereto which is not within the powers granted to it is coram non judice.

7. COUNTIES — Treasurer — Order Removing Treasurer from Office. — An order removing a county treasurer from office for failure to give a new bond was an order which the court had power to enter; and, if it was erroneous, it was a binding effectual judgment of the court until reversed.

8. APPEAL AND ERROR — Effect of Dismissal of Writ of Error — Affirmance of the Judgment Appealed from — Does Not Operate to Make a Void Judgment Binding. — While under section 6356 of the Code of 1930 the dismissal of a writ of error is in a sense an affirmance of the judgment appealed from, it is an affirmance in a limited sense only. Where the judgment appealed from is absolutely void upon its face because the court is without power to enter such a judgment in any event, and the writ of error is dismissed upon a ground which does not in any way bring into issue or involve the question whether it is void or not, the dismissal does not impart to the judgment any validity which it would not have had if there had been no appeal. It relieves the judgment from attack for error or irregularity which can be taken advantage of only upon an appeal or by some other direct proceeding to review the judgment of the trial court, but it does not operate to make the void judgment binding as an actual affirmance of the judgment by the appellate court would do as between the parties thereto.

9. APPEAL AND ERROR — Effect of "Dismissed Agreed" — Case at Bar. — In the instant case it was contended that as the order of dismissal stated that the writ of error and supersedeas was "dismissed agreed," the order of dismissal had the effect of affirming the judgment or decree appealed from. Whatever may be the effect in general of an order "dismissed agreed," in the instant case it could not release a surety upon a county treasurer's bond, because the record did not show that the county was a party to the agreement between the treasurer and the surety company in accordance with which the writ of error was dismissed. No agreement between the treasurer and his surety could have had the effect of releasing the latter from liability to the county on the treasurer's bond; and no agreement between them that a void order releasing the surety from liability to the county on the treasurer's bond should be treated as a valid order could have had the effect of making the order valid.

10. SUPERSEDEAS AND STAY OF PROCEEDINGS — Nature of Supersedeas — Auxiliary Writ — Effect of Supersedeas. — During the early days of the Commonwealth a supersedeas was an independent process by which the record was brought up for review by a superior court and further proceedings in the cause in the court below were stayed. But it is now, and has long been, in practice at least, merely an auxiliary process used as an adjunct to an appeal or a writ of error. It operates to stay all further proceedings on the judgment, or as to any matter embraced therein. Its effect is to prevent the enforcement of the judgment to any further extent than has been had at the time it becomes effective, and, thereby, to preserve the status quo at the time the supersedeas becomes effective. But it does not vacate or annul, even conditionally, the judgment, or impair its validity and effect as a judgment; nor does it operate retrospectively to undo what has already been done thereby or thereunder, or to restore and maintain the status quo existing at the time the judgment appealed from was rendered. Hence, what has been done thereby or thereunder before the supersedeas takes effect is upheld by the authority of the judgment; but after the supersedeas becomes effective, and while it remains in effect, what is done under authority of the judgment or toward its further enforcement is invalid, because the prospective authority of the judgment has been, in effect, suspended by the supersedeas.

11. SUPERSEDEAS AND STAY OF PROCEEDINGS — Effect of Supersedeas — Judgment Executed or Partly Executed. — To the extent that a judgment has become executed at the time a supersedeas thereto becomes effective, the supersedeas is without effect, and where a judgment has become fully executed at the time a supersedeas becomes effective, the supersedeas has no effect, because there is nothing upon which it can operate.

12. JUDGMENTS AND DECREES — Self-Executing Judgments. — Some judgments are self-executing (that is, require no affirmative action of the court, or action under a process issued by the court, to execute them), and are fully executed when they are rendered. For instance, a judgment quieting title to land which is in the possession of the plaintiff is fully executed when the judgment is rendered. Some judgments are self-executing in part, as, for instance, a judgment for money which is made by operation of law a lien on the real estate of the judgment debtor from the time the judgment is rendered. Such a judgment is self-executing in so far as the establishment of the lien is concerned, but not in so far as the enforcement of the lien or the payment of the money is concerned. Others are not self-executing in whole or in part, as, for instance, a judgment in favor of the plaintiff in an action of ejectment.

13. JUDGMENTS AND DECREES — Self-Executing Judgments — Effect of Supersedeas. — Generally, where a judgment is self-executing, if its execution of itself has not been stayed or postponed by the court rendering it a supersedeas thereof does not have the effect of suspending the operation of the judgment pending a decision by the appellate court.

14. JUDGMENTS AND DECREES — Self-Executing Judgments — Judgment Removing an Officer from Office — Effect of Supersedeas. — A judgment removing an officer from office is self-executing, and if its execution of itself is not stayed or postponed by the court rendering it, a writ of error and supersedeas to the judgment does not have the effect of continuing the officer in office pending a decision of the appellate court.

15. JUDGMENTS AND DECREES — Self-Executing Judgments — Judgment Removing an Officer from Office — Order of Suspension Entered by Trial Court — Supersedeas — Case at Bar. — In the instant case an order of suspension entered by the trial court had the effect of staying or postponing the self-execution of the order removing a county treasurer from office and to continue him in office during the period of the suspension; and as a supersedeas became effective before the period of suspension expired and preserved the status quo existing at the time it became effective, it operated to continue the treasurer in office...