Egan v. Chicago Great Western Ry. Co.

• Decision Date: 28 July 1908
• Docket Number: 613.
• Citation: 163 F. 344
• Parties: EGAN v. CHICAGO GREAT WESTERN RY. CO. et al.
• Court: U.S. District Court — Northern District of Iowa

163 F. 344

EGAN v. CHICAGO GREAT WESTERN RY. CO. et al.

No. 613.

United States Circuit Court, N.D. Iowa, Eastern Division.

July 28, 1908

The plaintiff, as administratrix of the estate of Charles H Egan, deceased, recovered in this court, April 28, 1906 judgment against the Chicago Great Western Railway Company in the sum of $8,000, as damages, and costs, for the wrongful and negligent killing of the deceased while he was in the employ of the railway company as a conductor upon one of its trains running between Dubuque and Oelwein, in this state. The railway company in due time sued out a writ of error from the Circuit Court of Appeals to reverse such judgment, which writ was, within 60 days from the date of the judgment, duly allowed to operate as a supersedeas upon the execution of a bond to the plaintiff in the sum of $10,000 with sureties to be approved and conditioned as by law provided. The railway company and the defendant Metropolitan Surety Company, as surety, executed such a bond to the plaintiff, which was duly accepted and approved, conditioned as follows: 'Now the condition of the above obligation is such that if the Chicago Great Western Railway Company shall prosecute said writ of error to effect, and answer all damages and costs if it shall fail to make good the same, then the above obligation to be void, else to remain in full force and virtue. ' Execution upon the judgment was thereupon stayed, citation issued, a transcript of the record in the cause duly filed in the office of the clerk of the Circuit Court of Appeals, and the cause docketed in that court.

Afterwards and in January, 1908, a suit in equity was brought by John A Humbird and others, creditors of the Chicago Great Western Railway Company, in the Circuit Court of the United States for the District of Minnesota, against said railway company in which suit receivers were appointed on January 8, 1908, by Hon. Walter H. Sanborn, one of the circuit judges of this circuit, to take possession of all of the property of the railway company and hold the same pending the hearing and determination of said suit, and said property was thereupon placed in their custody and control, and they are now operating said railway under the orders of said court. January 9, 1908, ancillary proceedings were instituted in this court by said John A. Humbird and others against the Chicago Great Western Railway Company, and the same receivers were appointed by Judge Sanborn in such proceedings for the property of said railway company in this judicial district, and they are now in possession of and operating the same under the directions of the court so appointing them.

March 14, 1908, the Court of Appeals, upon consideration of the record and proceedings in the cause of the plaintiff against said railway company, affirmed the judgment of this court and remanded the cause to it for further proceedings. Chicago Great Western Railway Company v. Egan, 159 F. 40. The mandate of the Court of Appeals was duly issued, and on May 16th filed with the clerk of this court, directing this court as follows: 'You therefore are hereby commanded that such execution and proceedings be had in said cause, as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding. ' May 19, 1908, the plaintiff filed in this court in this cause an application, or motion, for judgment against the Metropolitan Surety Company upon its bond for the amount of such judgment, interest and cost. An order was made requiring it to appear and show cause, if any it had, why the application or motion should not be granted, and that a copy of the order and of the application of the plaintiff be served upon it, and they have been so served.

May 21, 1908, the plaintiff also filed an intervening petition in this court in the ancillary proceedings of John A. Humbird and others against the Chicago Great Western Railway Company, reciting the recovery of the judgment by her, in this cause against the railway company, its affirmance by the Court of Appeals, and its nonpayment by the railway company, and alleged that said judgment was recovered for a personal injury inflicted by the railway company upon said deceased which caused his death, that under section 2075, Code Iowa 1897, such judgment is a prior lien upon the property of the railway company in Dubuque county, Iowa, and prayed that the receivers be directed to pay said judgment as a preferred claim against the property in their custody. This petition was referred to the master in the receiver's suit, where it is still pending.

The Metropolitan Surety Company appears specially, in response to the order and notice served upon it, and alleges: (1) That this court is without authority, statutory or otherwise, to render summary judgment against it in this proceeding as asked by the plaintiff; (2) that it does not appear that the railway company has refused to pay, or is unable to pay, the plaintiff's judgment against it; and (3) the filing of the intervening petition in the receiver's suit and its pendency before the master in that suit.

John W. Kintzinger, for plaintiff.

Arthur J. Stobbart, for defendant Metropolitan Surety Co.

REED, District Judge (after stating the facts as above).

The execution of the supersedeas bond by the surety company, the stay of execution upon plaintiff's judgment against the railway company because thereof, the affirmance of the judgment by the Court of Appeals, and its nonpayment are not disputed. The principal contention of the surety company is that this court is without authority, statutory or otherwise, to render summary judgment against it upon its undertaking, and that plaintiff's only remedy is an ordinary action upon the bond. It may be conceded that there is no act of Congress other than the Conformity act of June 1, 1872 (17 Stat. 197, c. 255; Rev. St. U.S. Sec. 914 et seq. (U.S. Comp. St. 1901, p. 684)), authorizing such procedure; but the Supreme Court of the United States has repeatedly held that, where the statutes of a state authorize a summary judgment against the sureties upon an appeal or supersedeas bond, the Circuit and District Courts of the United States in that state may render such judgment. Hiriart v. Ballon, 9 Pet. 156, 9 L.Ed. 85; Beall v. New Mexico, 16 Wall. 535, 21 L.Ed. 292; Moore v. Huntington, 17 Wall. 417, 21 L.Ed. 642; Smith v. Gaines, 93 U.S. 341, 23 L.Ed. 901; Reilly v. Golding, 10 Wall. 56, 19 L.Ed. 858.

In Hiriart v. Ballon, above, Ballon, the appellee, recovered judgment in the District Court of the United States for the District of Louisiana against one Gassies, who appealed from the judgment to the Supreme Court and gave a supersedeas bond signed by the appellant Hiriart, as surety. The judgment was affirmed by the Supreme Court, and its mandate in due course returned to the District Court. The appellee thereupon moved in the District Court for an order upon the appellant to show cause, if any he had, why judgment should not be entered against him upon his bond for the amount of the judgment, interest, and costs, which had been stayed by the giving of such bond. Notice of the motion was served upon the appellant, who appeared and answered that the proceeding by motion was unauthorized, and that his liability for judgment could only be established, if at all, by an ordinary action upon the bond in which he would be entitled to a jury trial. This contention was overruled by the District Court, and summary judgment entered against him upon the bond for the amount of the judgment, interest and costs. The law of Louisiana then in force allowed appeals from the judgment of the lower state courts to the state Supreme Court upon giving an appeal bond with security, and, upon affirmance of the judgment, authorized judgment to be entered against the surety upon the appeal bond in the court from which the appeal was taken. This law of Louisiana had been adopted as a rule of practice of the United States District Court for the District of Louisiana. The Supreme Court held that the summary judgment against the surety upon the supersedeas bond was regular and strictly authorized by the law of Louisiana and the rules of the United States court adopting the same as the practice and mode of proceeding in that court, and that the appellant was not entitled to a trial by jury. Smith v. Gaines, 93 U.S. 341, 23 L.Ed. 901, and Reilly v. Golding, 10 Wall. 56, 19 L.Ed. 858, also from Louisiana, are to the same effect.

In Beall v. New Mexico, 16 Wall. 535, 21 L.Ed. 292, a summary judgment was entered against the surety upon a supersedeas bond by the Supreme Court of the territory of New Mexico, pursuant to a statute of the territory, upon affirming the judgment of a lower court. The surety appealed to the Supreme Court. Mr. Justice Bradley, speaking for that court, said:

'A party who enters his name as surety on an appeal bond does so with full knowledge of the responsibilities incurred. In view of the law relating to the subject, it is equivalent to a consent that judgment shall be entered against him if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance, and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, why this effect should not be given to appeal bonds in other actions, if the Legislature deems it expedient. No fundamental constitutional principle is involved. No fact is to be ascertained for the purpose of rendering the sureties liable, which is not apparent in the record itself. No object (except mere delay) can be subserved by compelling the appellee to bring a separate action upon the appeal bond.' In Moore v. Huntington, 17 Wall. 417,

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