Aetna Ins. Co. v. Robertson

• Citation: 90 So. 120,127 Miss. 440
• Decision Date: 19 December 1921
• Docket Number: 22432
• Court: Mississippi Supreme Court
• Parties: AETNA INS. CO. et al. v. ROBERTSON, STATE REVENUE AGENT

90 So. 120

127 Miss. 440

AETNA INS. CO. et al. v. ROBERTSON, STATE REVENUE AGENT

No. 22432

Supreme Court of Mississippi

December 19, 1921

1. APPEAL AND ERROR. Decree for penalty for violating Anti-Trust Law can be stayed only by supersedeas in double the amount but decree to pay over impounded funds may be stayed by bond for costs, interest, and damages.

A decree against insurance companies for eight million dollars as a penalty for violating the Anti-Trust Law is a money judgment, which can only be stayed by a supersedeas bond in double the amount, under section 50, Code of 1906 (section 26, Hemingway's Code); but the further order, in the same decree, to pay over impounded funds in the hands of the court, pending appeal without supersedeas of main judgment is a separable judgment, and may be stayed by supersedeas granted by a justice of this court upon giving bond for costs, interest, and damages, under section 56, Code of 1906 (section 32, Hemingway's Code).

2. APPEAL AND ERROR. Surety companies authorized to do business in state may be accepted on appeal bonds.

Surety companies authorized to do business in this state may be accepted on appeal bonds as provided by statute; and such bonds are civil and contractual obligations, and not for penalties for violation of state statutes.

3. APPEAL AND ERROR. Surety company owned by appellant cannot go upon appeal bond.

A surety company owned and controlled by an appellant insurance company cannot go upon appeal bond of such insurance company.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Action by Stokes V. Robertson, State Revenue Agent, against the Aetna, Insurance Company and others. Judgment for plaintiff, and defendants appeal. On motion by appellee to discharge a supersedeas staying an order to pay over to plaintiff certain money impounded in the hands of receivers. Motion overruled.

See, also, 88 So. 883.

Motion overruled.

Clayton D. Potter and Chalmers Potter, for motion.

Watkins, Watkins & Eager, R. L. McLaurin, J. B. Harris, J. H. Doyle and William Thompson, for opposed.

HOLDEN, J. ETHRIDGE, J., dissents.

OPINION

HOLDEN, J.

This is a motion here to discharge a supersedeas granted by Justice Anderson of this court, staying the order of the chancellor, condemning, and to pay over to Stokes V. Robertson, state revenue agent, certain money impounded in the lower court, in the hands of the receivers appointed by the court in the suit of the revenue agent against the Aetna Insurance Company and a large number of other insurance companies. The money so impounded was brought into the court by attachment and other process, and there held by the receivers to await the decision of the chancellor in the suit of the revenue agent against the insurance companies to recover from the insurance companies penalties for the violation of the anti-trust laws of the state of Mississippi.

Upon the final hearing of the antitrust suit a decree was rendered against the insurance companies, in the aggregate for about eight million dollars. In addition to the decree of liability against the insurance companies for the sum of eight million dollars, the court further decreed that the impounded money in the hands of the receivers be condemned to pay the decree, that the title to said funds be divested out of the insurance companies and be vested in the revenue agent for the benefit of the state and that the receivers should immediately pay over said money to the revenue agent in part settlement of the decree against the insurance companies; the amount of the impounded money, ordered paid over, being about five hundred thousand dollars.

The insurance companies, appealed from the decree against them for eight million dollars without supersedeas, and applied to Justice Anderson for a supersedeas as to that portion of the decree directing the impounded funds to be forthwith paid over to the revenue agent. Whereupon Justice Anderson granted a supersedeas to stay that part of the judgment ordering the impounded funds to be paid over to the revenue agent, until a decision is rendered by this court in the main case. The order granting the supersedeas provides that each of the insurance companies shall enter into a bond of five hundred dollars to cover the cost of appeal, and the further sum of twenty-five per cent. of the amount of their respective funds impounded, conditioned to pay damages and interest should the decree of the lower court in the main case be affirmed. The required bonds were furnished and approved by the clerk of the chancery court.

The motion of the revenue agent now before us to discharge the supersedeas presents for our consideration three propositions which merit discussion:

First, it is contended that the decree of liability against the insurance companies for eight million dollars is a money judgment which cannot be stayed by supersedeas unless bond be given in a penalty double the amount of the judgment appealed from, and that the order of the chancellor to pay over the impounded funds is not separable from the main money judgment and cannot be stayed except by a supersedeas bond as required by section 50, Code

Second, that the bonds furnished by the appellant insurance companies are insolvent and insufficient because the sureties thereon are foreign surety companies with insufficient assets in this state out of which the amount of the bonds could be made, and that the obligations could not be enforced against them in their home states because such recovery would be for a penalty for violating the statutes of this state which no other state courts would enforce.

Third, that the surety bonds approved to the extent of fifty-one thousand, seven hundred six dollars and four cents in the Hartford Accident & Indemnity Company and the bonds to the extent of sixty-seven thousand, six hundred twenty-eight dollars and fifty-nine cents in the Royal Indemnity Company afford no protection to the appellee revenue agent because the Hartford Indemnity Company is under the management, control, and ownership of the Hartford Fire Insurance Company, one of the appellants here; and the Royal Indemnity Company is under the management, control, and ownership of the Royal Insurance Company, the Liverpool, London & Globe and the North British & Mercantile Company, appellants, and for this reason are not proper sureties on the bonds.

The supersedeas staying the order of the chancellor to pay over the impounded funds to the revenue agent was granted by Justice Anderson under the authority of section 56, Code of 1906 (section 32, Hemingway's Code), which reads as follows: "In any case of an appeal to the supreme court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from or by the judge thereof, or by the supreme court or any of the judges of said court, upon such bond, with such sureties as said court or judge may direct in the order for a supersedeas."

The main question presented for our decision is whether or not the supersedeas granted comes within the authority of the above section 56, Code of 1906 (section 32, Hemingway's Code), or whether section 50, Code of 1906 (section 26, Hemingway's Code), is alone controlling in the case; said section 50, Code of 1906 (section 26, Hemingway's Code), reads as follows: "On appeal from any interlocutory decree, where the chancellor shall allow a supersedeas, and on appeal from a final decree of the chancery court, or the final judgment of a circuit court where the appellant shall desire a supersedeas, bond shall be given by the appellant, payable to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty double the amount of the decree or judgment appealed from, or double the amount of the value of the property or other matter in controversy, to be determined by the officer granting the appeal, conditioned that the appellant will satisfy the judgment or decree complained of, and also such final judgment as may be made in the cause, and all costs, if same be affirmed, and a supersedeas shall not issue until such bond shall have been given; and a supersedeas shall not be granted in any case pending in the supreme court, unless the party applying for it shall give bond as above required."

It will be noticed that this last section provides for an appeal and supersedeas, and also provides that "guaranty or surety companies authorized to do business in this state" may become sureties on appeal bonds. The sureties complained of by the appellee appear to be surety companies authorized to do business in this state.

We think it is unquestionably true that the decree in this case for eight million dollars is a money judgment, and that no stay of its execution by supersedeas could be granted unless the provisions of the last section above were complied with by the execution of bonds in a penalty double the amount of the judgment appealed from, to wit, eight million dollars; but we are of the opinion that the requirements of this section have no application to the granting of the supersedeas staying that part of the judgment ordering the immediate paying over of the impounded funds to the revenue agent, because that part of the judgment ordering the paying over of the funds is separable from the main judgment of liability for eight million dollars, as it is a separate order with reference to the disposition of the money, or property, in the hands of the court, while the main...