Calhoun v. Gray

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 591,131 S.W. 478
• Parties: CALHOUN v. GRAY et al.
• Court: Missouri Court of Appeals

131 S.W. 478

150 Mo. App. 591

CALHOUN v. GRAY et al.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. COSTS (§ 142)—SECURITY FOR PAYMENT— BONDS—LIABILITY.

A judgment for the principal in a cost bond conditioned on the payment of all costs that may accrue in the action is a conclusive discharge of the sureties on the bond.

2. PRINCIPAL AND SURETY (§ 145) — JUDGMENT AGAINST PRINCIPAL — LIABILITY OF SURETY.

A judgment against the principal in a bond is as a general rule receivable in evidence to hold prima facie the surety in the bond, who is not a party to the record; but the surety may defend and show a good defense which the principal could have asserted.

3. PRINCIPAL AND SURETY (§ 145) — JUDGMENT AGAINST PRINCIPAL — LIABILITY OF SURETY.

Where sureties undertake to pay a particular judgment, or to do something dependent on the result of a specific litigation then pending, such as to answer for the conduct of a party as to a charge which the law lays on him, the judgment against the principal in the undertaking is, in the absence of fraud or collusion, conclusive on the sureties.

4. COSTS (§ 140) — SECURITY FOR COSTS — BONDS.

A cost bond is in the nature of a recognizance executed by the sureties, who, by executing and filing the same, voluntarily become parties to the record in the cause.

5. RECOGNIZANCES (§ 1)—EFFECT.

A "recognizance" is an obligation of record entered into before a court or other duly authorized officer, conditioned to do some act required by law, which is therein specified.

6. COSTS (§ 142) — SECURITY FOR COSTS — BONDS—STATUTES.

Under Rev. St. 1909, § 2259 (Ann. St. 1906, § 1543), declaring that the surety on a cost bond binds himself to pay all costs of the action, costs accrue, if at all, and are adjudged against the parties to the action, and the obligation of a surety in a cost bond is to pay such costs as are adjudged against the principal.

7. PRINCIPAL AND SURETY (§ 59)—CONTRACTS —CONSTRUCTION.

The rule for construing a contract of suretyship is the one applied to the interpretation of other instruments, and the court will resort to the same aids and invoke the same canons of construction which apply to other contracts.

8. PRINCIPAL AND SURETY (§ 145)—BOND FOR COSTS — CONCLUSIVENESS OF JUDGMENT AGAINST PRINCIPAL.

Under Rev. St. 1909, § 2259 (Ann. St. 1906, § 1543), declaring that the surety in a cost bond binds himself to pay all costs in the action, a surety in a cost bond executed by a plaintiff and the surety, stipulating that "we * * * agree to pay all costs that have accrued, or may accrue," in the action, is bound to abide the result of a taxation of costs in the litigation between the parties thereto, and a judgment for costs against plaintiff determines the costs for which the surety is responsible, and is conclusive against him.

9. COSTS (§ 214)—COST BONDS—OBLIGATION OF SURETIES.

A surety in a cost bond may file a motion to retax the costs, though he is not mentioned in the judgment.

10. APPEAL AND ERROR (§ 151)—RIGHT OF REVIEW — PERSONS AGGRIEVED — SURETIES ON COST BOND.

A surety in a cost bond may appeal from the judgment against the principal alone, for he is aggrieved thereby.

11. COSTS (§ 144)—COST BONDS—LIABILITY OF SURETY.

Under Rev. St. 1909, § 2278 (Ann. St. 1906, § 1562), authorizing the entry of judgment against the surety for costs in like manner and to the same extent as if the suit had been instituted in his own name, a judgment against the surety in a cost bond may be given at the time judgment is given against the principal, and such a judgment against the surety, though rendered without notice to him, is valid, because he is a party to the record and is concluded by the judgment for costs against his principal.

12. CONSTITUTIONAL LAW (§ 309) — DUE COURSE OF LAW.

Due course of law assures to every person his right to a day in court, and of a notice of a hearing and an opportunity to defend, and one who is a party to the record by virtue of his having become a surety in a cost bond voluntarily submits himself to such judgment as shall be given against plaintiff for costs subject to his right to move for a retaxation.

13. PRINCIPAL AND SURETY (§ 145)—JUDGMENT AGAINST PRINCIPAL AS CONCLUSIVE AGAINST SURETY.

Where a surety in a cost bond fails to move to retax costs against his principal or to appeal from an adverse ruling, the judgment for costs is conclusive on him.

14. COSTS (§ 145)—COST BONDS—LIABILITY OF SURETIES.

A witness in whose favor fees are taxed as costs may sue a surety on the cost bond therefor.

Appeal from Circuit Court, Scotland County; Charles D. Stewart, Judge.

Action by Newton E. Calhoun against C. F. Gray and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Thomas L. Buford, Fogle & Fogle, and Pettingill & Montgomery, for appellant. Smoot & Smoot and J. O. Boyd, for respondents.

NORTONI, J.

This is a suit against the sureties on a statutory cost bond for costs adjudged against their principal, who was plaintiff in the action in which the cost bond was given. The finding and judgment were for the defendants, and plaintiff prosecutes the appeal.

The question presented for decision is as to whether or not the judgment for costs against the plaintiff alone, and not against the sureties, is conclusive against his sureties on the cost bond. The relevant facts giving rise to the controversy are about as follows: One Shelley instituted a suit in the circuit court against plaintiff in the present action, Calhoun, and on motion the court required him to give security for the costs, which he did. The usual or statutory obligation for costs was executed by Shelley, the plaintiff in that action, and defendants in this, as his sureties thereon. Omitting caption and signatures, the instrument is in usual form, as follows: "We the undersigned, agree to pay all costs that have accrued or may hereafter accrue in the above-entitled cause." After this obligation for cost was filed and approved by the court, the case proceeded, and the finding and judgment were for the defendant. By this judgment, the costs in that proceeding were taxed against the plaintiff, Shelley, who may be regarded, as the principal in the cost bond executed by the defendants in this action as his sureties. There is nothing whatever said in that judgment touching the obligation of the sureties. In other words, it is a judgment for costs against Shelley alone who was plaintiff in the action. Shelley, the plaintiff in that action, having failed to pay the costs, the defendant therein, who is the plaintiff in this suit, paid the costs of a number of witnesses and took an assignment of their claim for the amounts due each, and thereafter instituted this suit on the cost bond against the present defendants who were Shelley's sureties, seeking to recover the costs of the witnesses theretofore properly assigned to him.

At the trial of the present case, plaintiff introduced the cost bond and the record and judgment of the former suit showing that judgment had been given against the plaintiff, Shelley, for the costs therein, together with other records showing the taxation of the costs of the several witnesses whose rights he had acquired by assignment, and gave testimony to the effect that he had paid the same to the witnesses and taken an assignment of their claims in the amount stated. The court treated the judgment against Shelley for costs as prima facie only against these sureties and permitted them to introduce evidence to the effect that the several witnesses whose claims were assigned to plaintiff were not entitled to receive the fees claimed by them for the reason they had failed to swear to the same, as required by the statutes, before the clerk at the time the costs were taxed by that officer against the plaintiff. Notwithstanding the plaintiff's objections and exceptions, the court received the testimony and found the issue for the defendants on the theory that such witnesses were not entitled to the costs taxed in their favor and that the judgment in the former suit was not conclusive against the sureties.

It is argued by the plaintiff that the judgment given in his favor for costs against Shelley, the plaintiff in the former action, is conclusive on the present defendants, sureties on the cost bond therein, and that the matter of the right of the several witnesses to their fees is res judicata. It is argued the defense interposed by the sureties to the effect that the several witnesses were not entitled to costs, although adjudged in their favor in the former action, is a collateral attack on the prior judgment against Shelley for the reason these sureties were parties to that suit, although they are not mentioned in the judgment. On the other hand, it is argued on the part of the defendants the judgment given against Shelley and the taxation of costs thereunder is only prima facie in so far as these defendants are concerned. Treating Shelley, the plaintiff in the former action, as principal, and these defendants as his sureties on the cost bond, and putting aside the fact the sureties were at least parties to the record in the former action, it may be asserted as a proposition entirely true that, had the judgment gone in favor of the principal debtor alone, this judgment would stand as a conclusive discharge of the sureties for the obligation of Shelley. This proceeds from the fact that a judgment in favor of the principal in an undertaking extinguishes the obligation thereof, and, as suretyship is only an incident to the principal obligation, such judgment is conclusive in favor of the surety to the effect that no obligation may be enforced against them. State, to Use, etc., v. Coste, 36 Mo. 437, 88 Am. Dec. 148. But, in cases where the sureties are not parties to the record or given an opportunity to defend by appropriate notice, a judgment establishing the obligation against the principal is not...