Dragor Shipping Corporation v. Union Tank Car Co.
| Decision Date | 04 January 1967 |
| Docket Number | No. 20416.,20416. |
| Citation | 371 F.2d 722 |
| Parties | DRAGOR SHIPPING CORPORATION, formerly Ward Industries Corporation, Appellant, v. UNION TANK CAR COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Norman S. Hull, Hull, Terry & Ford, Tucson, Ariz., Joseph Lotterman, Paul Zola, Lotterman & Weiser, New York City, for appellant.
Thomas C. McConnell, Chicago, Ill., Harold C. Warnock, Boyle, Bilby, Thompson & Schoenhair, Tucson, Ariz., for appellee.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
The district court rendered judgment in the amount of $1,037,500 in favor of plaintiff Union Tank Car Company (Union), and against defendant Dragor Shipping Corporation (Dragor). Dragor appealed, and we reversed. Dragor Shipping Corporation v. Union Tank Car Company, 9 Cir., 361 F.2d 43. Union then moved this court to stay its mandate, pursuant to 28 U.S.C. § 2101(f) (1964), on the ground that Union intended to petition the Supreme Court of the United States for a writ of certiorari.
Dragor opposed the motion and also argued that, if a stay is granted, it should be conditioned upon the filing of a "supersedeas" bond in the sum of approximately six thousand dollars, obligating Union to answer "for all damages and costs which the other party may sustain by reason of the stay." The quoted language was taken from 28 U.S.C. § 2101(f) (1964), but that statute does not refer to the bond therein provided for as a "supersedeas" bond. Explaining why the bond should be in the amount of six thousand dollars, Dragor noted that this sum "* * * represents the judgment of costs to be entered in favor of Dragor upon this Court's reversal of the judgment of the district court." The judgment for costs, theretofore entered, was in the sum of $5,809.11.
Responsive to this countersuggestion by Dragor, a judge of this court granted the stay, conditioned as follows:
"This stay is granted upon the condition that appellant shall, within ten days of the entry of this order, file with the clerk of this Court a supersedeas bond in the amount of six thousand dollars ($6,000.00), approved by the undersigned judge, conditioned as follows: If appellee fails to petition for a writ of certiorari on or before June 24, 1966, or fails to obtain an order granting such petition or, in the event such petition is granted, fails to prevail in the Supreme Court, appellee shall answer for all damages and costs which appellant may sustain by reason of this stay."
Such a bond was tendered, approved, and thereafter filed by Union, The Home Indemnity Company (Home), being the surety thereon. Union duly filed its application for a writ of certiorari with the United States Supreme Court. The application was denied on October 10, 1966. 385 U.S. 831, 87 S.Ct. 68, 17 L.Ed.2d 66.
Dragor next made demand upon Home for payment of the $5,809.11 judgment of costs on the appeal in this court. Home denied liability on the ground that the bond on which it is surety does not cover the matter of costs on appeal in this court. Dragor then filed, in this court, a motion "* * * under and pursuant to Rules 73(f) and 62(d) of the Federal Rules of Civil Procedure. * * *," directing entry of a judgment in favor of Dragor, and against Home, in the sum of $5,809.11, with interest from April 7, 1966.
On behalf of itself and Home, Union filed a response to this motion. It is therein contended that:
Counsel for Dragor has filed a reply affidavit, reasserting the position taken by Dragor in filing the motion.
Provision for summary proceedings for the enforcement of the liability of a surety is contained in Rule 65.1, Federal Rules of Civil Procedure. Rule 65.1 pertains only to security required or permitted under some provision of the Federal Rules of Civil Procedure, including the Supplemental Rules for Certain Admiralty and Maritime Claims. Dragor contends that the security here in question was required or permitted by Rules 62(d) and 73(d) of the Federal Rules of Civil Procedure. Those rules, however, pertain only to the giving of security in connection with the granting of a stay pending an appeal to this court.
Union's motion for a stay was not made under either of these rules, or any other rule of the Federal Rules of Civil Procedure. It was made pursuant to 28 U.S.C. § 2101(f), pertaining to stays pending applications to the Supreme Court of the United States for a writ of certiorari, and disposition thereof. See, also, Rules 27 and 51(2), Revised Rules of the Supreme Court of the United States. Neither section 2101(f), nor any other statute or rule called to our attention prescribes a specific mode of enforcing the liability of a surety on such a bond.
However, in Russell v. Farley, 105 U.S. 433, 445, 26 L.Ed. 1060, the Supreme Court ruled that where neither the bond given in connection with the granting of an injunction, nor the statutes, nor any rule of court, prescribes a specific mode of assessing damages, the court which granted the injunction conditioned upon the filing of a bond may, in its discretion, enforce liability thereon, or leave the matter to an independent action at law. The Court there said:
"The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case; and having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice, and put an end to further litigation." 105 U.S. at 445.
In our opinion this same principle applies where, as here, there is a similar lack of direction in the bond, statutes or rules of court, concerning the manner of enforcing the liability of a surety under a bond given pursuant to section 2101(f). Exercising the discretion thus vested in us, and having in mind that Dragor's motion for judgment against the surety on Union's bond presents no issue of fact, we hold that Dragor may assert its claim against the surety in this summary proceeding.
Section 2101(f) provides that, in the event the party who obtained the stay by posting a bond, pending proceedings in the Supreme Court becomes liable thereon, "* * * he shall answer for all damages and costs which the other party may sustain by reason of the stay." Relying upon this language, Union argues that section 2101(f), by its express terms, limits the obligation of the bond to damages and costs sustained as a result of a stay of the judgment pending Supreme Court review, and thereby excludes any obligation on the judgment on which Supreme Court review is sought.
To continue reading
Request your trial
-
Steel Hill Development, Inc. v. Town of Sanbornton
...rests on two or more grounds, none can be relegated to the category of obiter dictum.") Accord Diagor Shipping Corporation v. Union Tank Car Company, 371 F.2d 722 (9th Cir. 1967). It appears clear from the opinion of the Court of Appeals in "Steel Hill I" that even if the Court were to have......
-
Pioneer Annuity Life Ins. Co., by Childers v. Rich, 1
...neither holding is dictum." State v. Pena, 140 Ariz. 545, 548, 683 P.2d 744, 747 (App.1983); see also Dragor Shipping Corp. v. Union Tank Car Co., 371 F.2d 722, 726 (9th Cir.1967) ("Where an appellate court decision rests on two or more grounds, none can be relegated to the category of obit......
-
Halpern v. Schwartz
...ground. See, e.g., Massachusetts v. United States, 333 U.S. 611, 68 S.Ct. 747, 92 L.Ed. 968 (1948); Dragor Shipping Corp. v. Union Tank Car Co., 371 F.2d 722 (9 Cir. 1967). In stare decisis, the questions of law decided in each of the alternative grounds may be reconsidered when the issues ......
-
Fluor Corp. v. United States ex rel. Mosher Steel Co.
...in this court arising out of these projects is reported in Dragor Shipping Corp. v. Union Tank Car Co., 9 Cir., 361 F.2d 43 (1966); 371 F.2d 722 (1967); 378 F.2d 241 2 The parties are well aware of these conflicts and differences; they have explored them in great detail in their briefs. No ......