Davis v. Patrick, 265.

Decision Date18 September 1893
Docket Number265.
Citation57 F. 909
CourtU.S. Court of Appeals — Eighth Circuit
PartiesDAVIS et al. v. PATRICK.

R. S Hall, for plaintiffs in error.

John L Webster and George W. Doane, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge.

This is an action upon s supersedeas bond which was executed by the plaintiff in error on the 11th day of February, 1890, for the purpose of staying proceedings pending the prosecution of a writ of error to the United States supreme court, on a judgment in the sum of $65,000, which was recovered by the defendant in error against Erwin Davis on the 21st of January, 1890, in the United States circuit court for the district of Nebraska. The petition on which the case was tried alleged the recovery of the judgment against Erwin Davis, the due execution of the supersedeas bond on February 11, 1890, and further averred that at the October term, A. D 1891, of the United States supreme court, said judgment against Davis was by said court affirmed, with costs, and that it thereupon, on March 1, 1892, sent down its mandate of affirmance to the circuit court of the United States for the district of Nebraska, which mandate had been duly filed in the clerk's office of the last-mentioned court. It was further averred that the obligors in the bond, although often requested to pay the said judgment, had hitherto failed and refused to do so, wherefore a judgment on the bond was demanded in the sum of $65,000, with interest and costs. The trial in the circuit court resulted in a verdict against the plaintiffs in error in the sum of $78,905, to reverse which they have prosecuted the present writ of error.

To the petition filed by the plaintiff in the circuit court the defendants pleaded, among other things, 'that upon the mandate of the supreme court of the United States mentioned and referred to in said petition, and therein alleged to have been filed in this court, no order had been or ever was entered in this court [i. e. the circuit court] directing the execution of the alleged judgment of the supreme court of the United States, nor other action had in or taken by this court upon or in respect of the said mandate.' To such plea the plaintiff below demurred, and the circuit court sustained the demurrer. Its action in that respect constitutes one of the principal errors that have been assigned. It is contended by the learned counsel for the plaintiff in error that when a judgment in a law case has been affirmed by the supreme court of the United States, and a mandate has been sent down and filed with the clerk of the circuit court, no action can be maintained on a supersedeas bond which may have been given in the case until the circuit court has made an order thereon directing the judgment to be enforced or carried into effect.

It is conceded that there are no decisions which in terms announce the doctrine last stated, but it is nevertheless argued that such is the correct practice. We are constrained to take a contrary view, and for the following reasons: The liability of the obligors in a supersedeas bond is determined by the language of the bond. They undertake that the judgment debtor will 'prosecute the writ of error to effect, and answer all damages and costs if he fail to make his plea good.' The writ of error is not prosecuted to effect if the judgment is affirmed, and it seems obvious that on the rendition of a judgment of affirmance the obligation of the principal and sureties to pay the debt, damages, and costs becomes absolute, without any further order by the court whose judgment is affirmed to the effect that the judgment be enforced or carried into execution. In the case of Babbitt v. Finn, 101 U.S. 7, 13, it is said that 'the rule is universal that the affirmance of the judgment in the appellate court fixes the liability of the sureties, as it shows conclusively that the principal obligor did not prosecute his appeal to effect.' In the same case it was further held that a judgment creditor whose judgment has been affirmed on appeal to the supreme court is under no obligation to take out an execution against the judgment debtor before suing on the appeal bond; and with reference to the contention that such preliminary action was necessary the court again declared that 'it was the affirmance of the judgment that fixed the liability of the sureties,' and that, inasmuch as the defendants bound themselves that the principal should pay the...

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17 cases
  • Missouri, K. & T. Ry. Co. v. Elliott
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 9, 1900
    ... ... of the United States. McFaul v. Ramsey, 20 How. 523, ... 15 L.Ed. 1010; David v. Patrick, 12 U.S.App. 629, ... 635, 6 C.C.A. 632, 57 F. 909; Manufacturing Co. v ... Hess, 98 F. 56, 8 C.C.A. 647; Drexel v. True, ... 36 U.S.App. 611, 20 C.C.A. 265, 74 F. 12; Electric Co. v ... Dick, 8 U.S.App. 99, 3 C.C.A. 149, 52 F. 379; ... Railway Co ... ...
  • Egan v. Chicago Great Western Ry. Co.
    • United States
    • U.S. District Court — Northern District of Iowa
    • July 28, 1908
    ...9 Wheat. 553, 6 L.Ed. 158; Jerome v. McCarter, 21 Wall. 17, 22 L.Ed. 515; Babbitt v. Finn, 101 U.S. 7-14, 25 L.Ed. 820; Davis v. Patrick, 57 F. 909, 6 C.C.A. 632; Wood v. Brown, 104 F. 203, 43 C.C.A. It is not the practice of the Supreme Court of the United States nor of the Court of Appeal......
  • Kerr-Murray Mfg. Co. v. Hess, 1,230.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 20, 1899
    ... ... not be reviewed on appeal or on writ of error. Davis v ... Patrick, 12 U.S.App. 629, 635, 57 F. 909, 6 C.C.A. 632; ... Sims v. Hundley, 6 How. 1, 5, ... 149; Drexel v. True, 36 U.S.App ... 611, 74 F. 12, ... [98 F. 58] ... 20 C.C.A. 265. In the present case, however, we should be ... compelled to hold that the discretion of the trial ... ...
  • Fuller v. Aylesworth
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 8, 1896
    ...is adjudged against the principal would be lawful. Babbitt v. Finn, 101 U.S. 7; Davis v. Patrick, 12 U.S.App. 629, 634, 6 C.C.A. 632, and 57 F. 909. But the bond here is not open to such objection. The county did not sign the bond in suit, but that, it is conceded, does not affect its valid......
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