Braithwaite v. Jordan

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCORLISS
Citation65 N.W. 701,5 N.D. 196
Decision Date28 October 1895
PartiesBRAITHWAITE v. JORDAN et al.

5 N.D. 196
65 N.W. 701

BRAITHWAITE
v.
JORDAN et al.

Supreme Court of North Dakota.

Oct. 28, 1895.



Syllabus by the Court.

1. A libel in a possessory action in rem was filed in the district court of the territory of Dakota, sitting as a court of admiralty. The plaintiff herein defended the action as claimant of the vessel, and was successful. On appeal by the libelants to the territorial supreme court, the undertaking sued on was given to secure a stay of proceedings. The judgment of the district court being affirmed, plaintiff, who was respondent on the appeal, brought suit on such undertaking. Held, that the action was not an integral part of the original admiralty case, and that, therefore, the federal district court for the district of North Dakota, as the successor in admiralty cases of the territorial district court, did not have exclusive jurisdiction of the proceedings to enforce such undertaking, although the plaintiff might have secured in that court, in the very action in which the undertaking was given, a summary judgment against the persons who signed such undertaking,-the defendants herein,-but that an action on such undertaking would lie in the district court of this state.

2. Also, held, that this action on the undertaking is not a proceeding to enforce the judgment in the admiralty case, within the meaning of the rule that the court, whether state or federal in which a judgment is rendered, has exclusive jurisdiction to enforce it.

3. Also, held, that no principle of comity requires the state courts to refuse to take cognizance of the case. It is no objection to the jurisdiction of the court in entertaining a common-law action of debt that the plaintiff has in another tribunal a remedy more speedy and simple in its character, and equally efficacious. Especially should this be the doctrine where to compel him to resort to the summary remedy would deprive him of the right to a trial by jury.

4. The judgment from which the appeal was taken merely adjudged that the claimant was entitled to possession, and ordered the marshal, who was legally in custody of the property, to deliver it to him. Held (by Corliss, J.), that this was not a judgment directing the delivery of personal property, within the meaning of section 416 of the Code of Civil Procedure, under revision of 1877 (Comp. Laws, § 5221), assuming such statute to be applicable to admiralty cases, and that, therefore, on this assumption, the appellants could have secured a stay of proceedings on the giving of a mere cost bond. Code Civ. Proc. § 422, Revision 1877. The undertaking, therefore, so far as it was more than a mere cost undertaking, was without consideration, and void as a statutory undertaking. But the majority of the court thought that the undertaking would be valid, even under the statute. But, held, that the practice on appeal in the admiralty case to the territorial supreme court was not regulated by the territorial statutes, but by the rules and usages of courts of admiralty, and that as the appellants had no absolute right, under such rules and usages, to perfect an appeal to the territorial supreme court, and secure a stay of execution pending such appeal, on the giving of a mere cost bond, and as the respondent in the appeal did in fact treat the undertaking as entitling the appellants to a stay, by abstaining pending the appeal from all attempts to enforce the judgment in his favor, held, further, that the undertaking was valid as a common-law obligation supported by a sufficient consideration.

5. It is no defense to an action on a statutory undertaking on appeal that the court has not fixed the amount thereof under the statute. Such provision is for the benefit of the respondent, and if he waive it, and treat the undertaking as sufficient to accomplish the purpose for which it was given, the undertaking may be enforced by him, the same as if the statute had been complied with.



On Rehearing.

1. The vessel at the time the appeal was taken was in the actual possession of the appellants, and this appeared from the record in the case. The bond recited that the judgment was against them for delivery of possession to claimant. It was for $15,000. Having been given to secure a stay of proceedings under these circumstances, it was necessarily given to enable the appellants to retain possession pending the appeal. Therefore, held, that it was in the nature of a stipulation for value, and claimant having, in reliance thereon, actually refrained from disturbing the appellants in their possession of the vessel pending the appeal, the instrument was valid as a voluntary bond.

2. Unlike stipulations for value in other cases, a stipulation for value in a possessory action can be enforced in any court having jurisdiction of an action of debt, for the amount due on the stipulation.


Appeal from district court, Burleigh county; W. H. Winchester, Judge.

Action by William Braithwaite against W. B. Jordan and others on an appeal bond. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

[65 N.W. 701]

G. W. Newton, for appellant. E. W. Camp, for respondents.


CORLISS, J.

Although the steamer Eclipse has for years lain at the bottom of the Missouri river, the litigation connected with her shows no signs of decadence. 4 Dak. 218, 30 N. W. 159; on appeal, 135 U. S. 599, 10 Sup. Ct. 873;1 N. D. 455, 48 N. W. 354;1 N. D. 475, 48 N. W. 361;2 N. D. 57, 49 N. W. 419;3 N. D. 365, 56 N. W. 133. In this case Capt. Braithwaite is seeking to recover damages for breach of an undertaking given by defendants on appeal from the district court to the supreme court of the territory

[65 N.W. 702]

of Dakota from a judgment rendered in a proceeding in admiralty instituted to try his title to, and right to the possession of, this vessel. The questions of law on the merits which are here at issue arise on demurrer to the plaintiff's complaint. The trial court sustained the demurrer. The plaintiff has appealed. It is obvious from the complaint that the undertaking was given as a cost bond, and also for the purpose of securing a stay of proceedings under the judgment appealed from pending the appeal. It is in the following form: “Whereas, on the 18th day of September, 1884, in the district court within and for the 3rd judicial district, the above-named respondent, William Braithwaite, recovered judgment against the above-named appellants for the possession of said steamer Eclipse and costs, and the above-named appellants and interveners, feeling aggrieved thereby, intend to appeal therefrom to the supreme court of the territory of Dakota: Now, therefore, we do hereby undertake that the said appellants will pay all costs and damages which may be awarded against appellants on said appeal, or on a dismissal thereof, not exceeding two hundred and fifty dollars, and do also undertake that if said judgment so appealed from, or any part thereof, be affirmed, or said appeal be dismissed, the said appellants will pay the amount directed to be paid by said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages and costs which shall be awarded against said appellants on said appeal, and also undertake to obey any order the appellate court may make in the premises; conditioned, however, that our liability hereunder shall not exceed fifteen thousand dollars. Dated December 16, 1884.” On the appeal the judgment was affirmed by the supreme court of the territory of Dakota.

Preliminary to the consideration of the merits, we must settle the question of the jurisdiction of the state courts to take cognizance of this action. Counsel for defendants insists that the power to render judgment on the undertaking sued on is vested exclusively in the United States district court for the district of North Dakota, sitting as a court of admiralty. He founds his contention upon the fact that the undertaking is the outgrowth of an action in admiralty, and on the proposition that any proceeding to enforce it is merely incidental to the main action in the course of which it was given. He asserts that a suit on the undertaking is an offshoot from the original proceeding,-is supplemental in character,-and that, therefore, the court in which it was given, and that court only, has power to enforce it. His argument certainly derives no support from the analogies of the law. If the doctrine to maintain which he has striven with great force in this court be indeed the true doctrine, it stands alone. In no other case is it the rule that the court in which a bond, recognizance, undertaking, or other security is taken in the course of a judicial proceeding pending therein has exclusive jurisdiction of an action brought to enforce it. (Of course, where scire facias is resorted to, the court in which the main proceeding was had is the only court which can take jurisdiction.) An action on such security, whatever be its form, is always as much incidental to the original suit as this action is incidental to the admiralty proceeding in which the undertaking sued on was given. The security is in the same sense an outgrowth of the main litigation, and the action thereon is as strictly an offshoot from the original proceeding, as is any suit to enforce an appeal bond given in the course of an admiralty action an offshoot from such original proceeding in admiralty. And yet, aside from admiralty cases, no case can be found-with possibly a single exception, to which we will hereafter allude-holding that a suit to enforce any bond given during the progress of any judicial proceeding must be brought in the tribunal in which it was given. Undertakings given on suing out writs of attachments; undertakings given to secure the discharge of attachments; undertakings to obtain orders of arrest; undertakings to secure release from imprisonment thereunder; supersedeas bonds and undertakings on appeal; bonds given on the...

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11 practice notes
  • Bortree v. Dunkin, 697
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Junio 1912
    ...the appeal, and thus a consideration is established by reason of the stay of execution. (Morin v. Wells, 75 P. 688; Braithwaite v. Jordan, 5 N.D. 196, 65 N.W. 701, 31 L. R. A. 238; Hascall v. Brooks, 63 N.W. 413; Pratt v. Gilbert, 29 Pa. 965; Leidigh v. Pribble, 90 N.W. 950.) It was never c......
  • Public Service Commission v. American Grain & Cattle, Inc., No. 9557
    • United States
    • United States State Supreme Court of North Dakota
    • 11 Julio 1979
    ...in support of their argument that the cooperative should be liable on a theory of common law bond are inapposite. In Braithwaite v. Jordon, 5 N.D. 196, 65 N.W. 701 (1895), the defendant voluntarily posted the bond and the plaintiff relied on it. Both of these features are absent from this c......
  • Fidelity & Deposit Co. v. State of Montana, No. 8428.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 26 Octubre 1937
    ...51 Ark. 205, 10 S.W. 624; Palmer v. Vance, 13 Cal. 553; American Surety Co. v. Butler, 86 Mont. 584, 284 P. 1011; Braithwaite v. Jordan, 5 N.D. 196, 65 N.W. 701, 31 L.R. A. 238. The State of Montana sued for the use and benefit of the holders of the defaulted warehouse receipts. Having exec......
  • Howe v. Farmers & Merchants Bank, Case Number: 20527
    • United States
    • Supreme Court of Oklahoma
    • 26 Enero 1932
    ...it to be given, or because it may not be precisely such an undertaking as the court would have required." Braithwaite v. Jordan (N. D.) 65 N.W. 701. ¶23 The result reached by these decisions has our unqualified approval, and it is unnecessary to base the conclusions upon consideration, offe......
  • Request a trial to view additional results
11 cases
  • Bortree v. Dunkin, 697
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Junio 1912
    ...the appeal, and thus a consideration is established by reason of the stay of execution. (Morin v. Wells, 75 P. 688; Braithwaite v. Jordan, 5 N.D. 196, 65 N.W. 701, 31 L. R. A. 238; Hascall v. Brooks, 63 N.W. 413; Pratt v. Gilbert, 29 Pa. 965; Leidigh v. Pribble, 90 N.W. 950.) It was never c......
  • Public Service Commission v. American Grain & Cattle, Inc., No. 9557
    • United States
    • United States State Supreme Court of North Dakota
    • 11 Julio 1979
    ...in support of their argument that the cooperative should be liable on a theory of common law bond are inapposite. In Braithwaite v. Jordon, 5 N.D. 196, 65 N.W. 701 (1895), the defendant voluntarily posted the bond and the plaintiff relied on it. Both of these features are absent from this c......
  • Fidelity & Deposit Co. v. State of Montana, No. 8428.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 26 Octubre 1937
    ...51 Ark. 205, 10 S.W. 624; Palmer v. Vance, 13 Cal. 553; American Surety Co. v. Butler, 86 Mont. 584, 284 P. 1011; Braithwaite v. Jordan, 5 N.D. 196, 65 N.W. 701, 31 L.R. A. 238. The State of Montana sued for the use and benefit of the holders of the defaulted warehouse receipts. Having exec......
  • Howe v. Farmers & Merchants Bank, Case Number: 20527
    • United States
    • Supreme Court of Oklahoma
    • 26 Enero 1932
    ...it to be given, or because it may not be precisely such an undertaking as the court would have required." Braithwaite v. Jordan (N. D.) 65 N.W. 701. ¶23 The result reached by these decisions has our unqualified approval, and it is unnecessary to base the conclusions upon consideration, offe......
  • Request a trial to view additional results

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