Aviation Credit Corporation v. Conner Air Lines, Inc., 19216.
| Decision Date | 08 October 1962 |
| Docket Number | No. 19216.,19216. |
| Citation | 307 F.2d 685 |
| Parties | AVIATION CREDIT CORPORATION, Appellant, v. CONNER AIR LINES, INC., F. A. Conner, M. M. Landy and American Casualty Company of Reading, Pennsylvania, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Laurence A. Schroeder, Miami, Fla., Robert V. Smith, Washington, D. C., for appellant.
Don G. Nicholson, Miami, Fla., for appellees.
Before RIVES, JONES and GEWIN, Circuit Judges.
This appeal is from a judgment establishing the extent of liability under the supersedeas bond furnished by Conner Air Lines, Inc., and F. A. Conner, appellants in one of the appeals reported as Conner Air Lines, Inc. v. Aviation Credit Corporation, 5 Cir., 1960, 280 F.2d 895. The basic facts are set forth in that opinion.
That appeal was from a decree ordering the foreclosure of a mortgage given by Conner Air Lines to Aviation Credit Corporation on a Douglas DC-6 Aircraft and eight Pratt & Whitney Aircraft Engines to secure an indebtedness found by the district court to be $417,646.16 as of June 17, 1959. Aviation Credit Corporation appealed from the same decree, and the two appeals were consolidated and heard together.
This Court held that Conner's appeal was without merit, but reversed upon Aviation Credit's appeal and remanded the cause for the entry of a decree in its favor greater in amount. Pursuant to this Court's mandate and opinion, the district court entered another decree of foreclosure on February 13, 1961, in which it ascertained the mortgage debt to be "the sum of $469,266.44 with interest from June 17, 1959 amounting to $46,379.13, plus $40,000 which the Court determines to be reasonable attorneys' fees incurred by plaintiff, plus costs in the District Court hereby taxed in the sum of $625.68, together with appellate costs in the sum of $1,873.45, making a grand total of $558,144.70." Thus, in addition to interest and costs, the district court found that the mortgage debt was more than $90,000.00 greater than that ascertained in the decree of June 17, 1959.
When the plane and engines were sold on May 5, 1961, they brought only $55,000.00. A receiver had been appointed to lease the plane and deposit the rentals in receivership. Out of the rentals the receiver paid to the mortgagee on February 14, 1961, $250,000.00, and on May 15, 1961, $150,000.00. On June 9, 1961, after the foreclosure sale, the total balance in the receiver's hands, $49,180.54, was paid to the mortgagee. Thus, the security eventually produced a total of only $449,180.50 to meet the indebtedness ascertained in the foreclosure decree of February 13, 1961 to be $558,144.70, leaving an unpaid deficiency (after calculating interest) as of June 9, 1961 of approximately $114,000.00.
When Conner appealed from the original foreclosure decree it had, pursuant to an order of the district court, filed a supersedeas bond with American Casualty Company as surety which was duly approved. That bond was in the principal sum of $175,000.00. The condition1 of the bond was thus stated:
On the other appeal taken by Aviation Credit Corporation from the same decree, no supersedeas bond was furnished.
On the day the foreclosure sale was confirmed, the principals and surety on the supersedeas bond filed their motion for an order setting conditions for release and discharge of the supersedeas bond. They asserted that the bond was responsible only for payment of the original decree of $417,646.16 and that all sums ordered paid to the mortgagee should be applied toward satisfaction of that decree. Over the objection of the mortgagee, Aviation Credit Corporation, the district court eventually followed that theory and ordered the supersedeas bond discharged upon payment of $13,068.14 plus interest from and after June 9, 1961. Apparently that amount was arrived at by the following calculations:
"Superseded decree of 6/17/59 ............................ $417,646.16
Received February 14, 1961 .............................. 250,000.00
___________
Principal balance .................................... $167,646.16
Interest on $417,646.16 decree from 6/17/59 to 2/14/61 .. 41,561.21
$27.572 per day interest on $167,646.16 from 2/15/61
through 5/15/61 ...................................... 2,514.68
Costs on Conner appeal only ............................. 282.07
___________
Total ................................................ $212,004.12
Received May 15, 1961 ................................... 150,000.00...To continue reading
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