Coeur D'Alenes Lead Co. v. Kingsbury

• Decision Date: 14 March 1936
• Docket Number: 6218
• Citation: 56 Idaho 475,55 P.2d 1307
• Court: Idaho Supreme Court
• Parties: COEUR D'ALENES LEAD COMPANY, a Corporation, Respondent, v. HENRY B. KINGSBURY and A. D. WALLACE, Appellants

55 P.2d 1307

56 Idaho 475

COEUR D'ALENES LEAD COMPANY, a Corporation, Respondent, v. HENRY B. KINGSBURY and A. D. WALLACE, Appellants

No. 6218

Supreme Court of Idaho

March 14, 1936

APPEAL AND ERROR-AFFIRMANCE - FAILURE TO DELIVER PROPERTY - SUPERSEDEAS BOND-LIQUIDATED DAMAGES.

1. Complaint in action on supersedeas bond given pursuant to statute relative to cases where judgment appealed from directs delivery of documents held sufficient notwithstanding absence of allegation as to damages incurred since damages were considered as liquidated and measured by amount of bond (I. C. A., sec. 11-205).

2. Where damages for failure to do that which is made the undertaking of a bond are so uncertain and intangible as to be in effect unascertainable, damages will be regarded as liquidated and measured by amount of bond.

3. Rules governing pleas or answers in civil cases generally apply to a plea or answer in an action on a supersedeas bond and hence a plea in such an action must be responsive to allegations of the complaint as by traversing issuable facts which go to the merits of the case.

4. Denials, in answer to action on supersedeas bond, that defendants had failed to comply with judgment or that they had breached contract in manner and form alleged by plaintiff held to raise an issue as to whether there had been a breach rendering answer good as against demurrer (I. C. A., sec. 11-205).

5. Averment of the contrary of what is alleged in complaint is equivalent to an ordinary denial, serving purpose of raising direct issue upon plaintiff's allegation.

6. In absence of assignment of error specifically raising any question with respect to trial court's action upon matters complained of, or of citation of authorities or argument in briefs upon such matters, Supreme Court was not required to consider validity of trial court's action therein.

7. That appeal in which supersedeas bond sued upon was given was taken from order denying a new trial and that affirmance on appeal was predicated upon lack of timely statutory notice of intention to move for new trial held not to relieve sureties of liability for failure to comply with judgment, especially where trial court and all parties acted on theory bond stayed judgment (I. C. A., secs. 11-205, 11-218).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Bert A. Reed, Presiding Judge.

Action on supersedeas bond. Judgment for respondent. Reversed and remanded for further proceedings.

Judgment reversed and cause remanded with instructions. Costs awarded to appellants.

Walter H. Hanson and F. C. Keane, for Appellants.

A supersedeas or stay bond given under the provisions of section 11-205, I. C. A., is not penal in nature and recovery can be had thereon for actual damages only. (Sec. 11-205, I. C. A.; United States Film Co. v. United States Fidelity & Guaranty Co., 44 Cal.App. 227, 186 P. 364; Northwestern Terra Cotta Co. v. Caldwell, 234 F. 491, 148 C. C. A. 257; Stuart v. Abbey, 62 Misc. 84, 116 N.Y.S. 259.)

Where the answer is sufficient to state a defense a demurrer thereto should be overruled. (Fritchman v. Athey, 36 Idaho 560, 211 P. 1080.)

James A. Wayne and Gray & McNaughton, for Respondent.

When the sureties on a bond agree to perform a statutory obligation or pay a given sum of money, upon failure of performance of the condition of the bond such sureties are required to pay the amount thereof, and the right of the obligee to recover on the bond is not dependent on whether he has suffered damage. (Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780; Runnels v. Lasswell, (Mo. App.) 272 S.W. 1032; United States Film Co. v. United States F. & G. Co., supra.)

An undertaking to stay the execution of a judgment is a complete, independent contract. The obligation of its maker is not collateral or secondary. Its obligations are to be determined from the instrument itself. (Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; Moffat v. Greenwalt, 90 Cal. 368, 27 P. 296.)

BUDGE, J. Givens, C. J., MORGAN, J., HOLDEN, J., Concurring, AILSHIE, J., Specially Concurring.

OPINION

BUDGE, J.

This action is an aftermath of the case of Wayne v. Marquardt, 54 Idaho 211, 30 P.2d 369. Greenough, Kingsbury and Hanson, directors, and Marquardt, secretary, of respondent corporation, called a meeting of respondent's shareholders for July 7, 1931, at which meeting a new board of directors was elected, consisting of W. E. Greenough, Carlson, Burton, R. W. Greenough and Wayne. The two last named were on the same day elected secretary and president, respectively, of the corporation. Demand was then made upon the former officers and directors for all the books and records of the corporation, all of the property of the corporation, consisting mainly of certain capital stock in the Atlas Mining Company, and whatever funds there were in the treasury of the corporation. The former officers having possession of the above-described items of property refused to turn the same over to the newly elected officers, whereupon a suit in mandamus was brought against them. That action, tried in January, 1932, resulted in a decree confirming the election of the new officers and required Hanson and Marquardt, the former president and secretary- treasurer, respectively, to immediately deliver up to R. W. Greenough, the new secretary-treasurer, "all of the books, records, files, accounts, documents, stock-certificates, correspondence, funds and moneys, and all papers and all property" of respondent corporation. After entry of the aforesaid judgment Hanson and Marquardt appealed to this court and for the purpose of staying execution furnished a supersedeas bond in the amount of $ 1,000, being the amount fixed by the court upon an ex parte order upon application of appellants.

On March 5, 1934, the appeal in the case of Wayne v. Marquardt, supra, was decided adversely to appellants and in due time the remittitur was filed in the court below. Notice of the filing of the remittitur and a demand to deliver up the documents or personal property was given to appellants. Approximately one month after the filing of the remittitur and after failure and refusal of appellants to comply with the order and judgment entered in the lower court, in effect affirmed upon appeal, the present action was instituted to recover on the supersedeas bond. Appellants filed a demurrer to the complaint, which was overruled, and thereafter appellants filed a joint answer to which a demurrer was sustained and appellants then answered separately; demurrers were sustained as to the separate answers, appellants refused to plead further and judgment was then entered in favor of respondent for $ 1,000, the sum named in the supersedeas bond, together with interest and costs, and this appeal was taken.

Error is sought to be predicated upon the action of the court in overruling the demurrer to the complaint. It is conceded that the supersedeas bond upon which the suit was brought was given under and pursuant to the provisions of I. C. A., section 11-205. It is urged by appellants that a supersedeas or stay bond given pursuant to the foregoing statute is not a bond for liquidated damages upon which liability for the full amount attaches upon the failure of the party to promptly comply, or deliver the documents or personal property, but that recovery can be had thereon only for actual damages suffered and established, and in order to state a cause of action it was incumbent upon respondent to allege all of the facts and circumstances, together with a statement of the damage incurred by respondent.

Where the sum mentioned in a supersedeas bond is in the nature of a statutory penalty for nonperformance of a statutory duty it is not necessary to show actual damage and the whole sum may be recovered. (Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780.) It therefore appears necessary to construe the provisions of I. C. A., section 11-205. It will be observed from a reading of the statute that it provides for two or alternative methods by which execution may be stayed pending appeal if the judgment or order appealed from direct the assignment or delivery of documents or personal property, providing:

"If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment cannot be stayed by appeal unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court or judge thereof may appoint; or unless an undertaking be entered into on the part of the appellant with at least two sureties, and in such amount as the court or judge thereof may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal."

Had appellants chosen not to have given the supersedeas bond the judgment or order of the court might have been executed to the extent that the documents or personal property in appellants' possession could have been placed in the custody of such officer or receiver as the court or judge thereof appointed. Had the documents or personal property been delivered to and placed in the custody of such officer, promptly upon the coming down of the remittitur respondent would have had the right to the possession of such property and there would have been no delay nor damage occasioned or incurred by an unlawful retention of such property on the part of appellants. However, appellants chose the latter alternative or provision of the statute, and, in order to prevent a delivery of the documents or personal property into the custody of an officer or receiver, gave the supersedeas bond. The sureties therein obligated themselves jointly and severally...