Elliot v. Lombard, 6816.

• Citation: 66 F.2d 662
• Decision Date: 04 August 1933
• Docket Number: No. 6816.,6816.
• Parties: ELLIOT v. LOMBARD.
• Court: U.S. Court of Appeals — Fifth Circuit

66 F.2d 662 (1933)

ELLIOT v. LOMBARD.

No. 6816.

Circuit Court of Appeals, Fifth Circuit.

August 4, 1933.

Wm. A. Van Siclen and Merritt Barton, both of Ancon, Canal Zone, for appellant.

Purnell M. Milner, of New Orleans, La., L. S. Carrington, of Ancon, Canal Zone, and Carlos Icaza A., of Panama City, R. P., for appellee.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

FOSTER, Circuit Judge.

Lombard, owner of the motor ship Lucky Girl and a sand barge, filed a libel in rem against the motor ship Real and in personam against her owner, Elliot, to recover damages for a collision between the said vessels. The Real was seized under admiralty process, was claimed by Elliot as owner, and was released on a stipulation with the United States Fidelity & Guaranty Company as surety. The condition of stipulation was as follows: "Now, therefore, the condition of this stipulation is such that if the stipulators undersigned, shall at any time, upon the interlocutory or final order or decree of the said District Court, or of any Appellate Court to which the above named suit may proceed, and upon notice of such order or decree to Vansiclen and Boggs, Esquires, Proctors for the Claimant of the said Motorship Real, abide by and pay the money awarded by the final decree rendered by the Court or the Appellate Court if any appeal intervene, then this stipulation to be void otherwise to remain in full force and virtue."

Thereafter Elliot filed an answer and a cross-libel in rem against the Lucky Girl, and she was released on conditions similar to those above set out, and upon which the United States Fidelity & Guaranty Company was also surety. Testimony was taken before the judge in open court, and a final decree was entered on August 27, 1932, the material part of which is in the following words and figures:

"Ordered, adjudged and decreed, that the libelant herein do have and recover from the respondent herein the sum of $6,321.29, with interest thereon at the rate of 6% per annum from the 31st day of July, 1930, together with the libelant's costs taxed in the sum of $117.20, with interest thereon until paid; and it is further

"Ordered, adjudged and decreed, that unless this decree be satisfied or an appeal taken within ten days after service of a copy of this decree with notice of entry upon the respondent or his proctor, execution issue against Hans Elliott, respondent, and the United States Fidelity and Guaranty Co., his stipulators for costs and value, their goods, chattels and lands to satisfy this decree; and it is further

"Ordered, adjudged and decreed that the cross-libel herein be dismissed at cross-libellant's costs."

On April 19, 1933, shortly before the hearing in this court, Lombard, appellee, filed a motion to dismiss the appeal on the ground that the surety company was not made a party to the appeal, was not asked to join in the appeal, and there had been no summons or severance. On April 22, 1933, the United States Fidelity & Guaranty Company, the surety on the stipulation, filed a motion in this court to join with Elliot in prosecuting the appeal, expressly waiving issuance and service of citation. At the same time Elliot moved for leave to amend his appeal to include the surety company as a party appellant.

On questions presented by the above motions the decisions are not harmonious, particularly with regard to admiralty stipulations for the release of vessels. It is settled by a long line of decisions that, if a joint judgment is rendered, all the parties must join in the appeal, or there must be a summons and severance or notice equivalent thereto or an appeal by one party will be dismissed. In the case of The Bylands, 231 F. 101, we held that the surety on a release bond in admiralty was a necessary party to the appeal, and, the surety not having appealed, there being no summons and severance or notice equivalent, the appeal was dismissed. In that case certiorari was denied. 241 U. S. 679, 36 S. Ct. 727, 60 L. Ed. 1233. In the case of The Mary B. Curtis, 250 F. 9, we adhered to the ruling in The Bylands that the surety was an indispensable party, but, after an extensive review of the authorities, granted a motion on behalf of the surety to be made a party to the appeal and overruled a motion to dismiss. In the case of The Glide, 72 F. 200 (C. C. A. 4th Circuit), where the judgment was joint in form, it was held that the stipulators on a release bond were not parties to the case, although bound by the result, and not necessary parties to the appeal. A similar ruling was made in the case of The New York, 104 F. 561 (C. C. A. 6th Circuit), and in the case of Munson S. S. Line v. Miramar S. S. Co., 167 F. 960, 961 (C. C. A. 2nd Circuit) the same ruling was had, apparently on the ground that the trial was de novo in the appellate court where the whole case was open. However, in the recent case of Hartford Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 52 S. Ct. 354, 76 L. Ed. 685, where a joint judgment was rendered by the Supreme Court of Mississippi against appellant and the surety on the appeal bond (Hartford Accident & Indemnity Co. v. Natchez Inv. Co., 161 Miss. 198, 132 So. 535, 135 So. 497), it was held, after an extensive review of the authorities, that the surety was an indispensable party to a writ of error to the Supreme Court and a motion to join in the appeal, made after the time for appeal had expired, came too late and could not be entertained. In that case the decision in The New York (C. C. A.) 104 F. 561, which is typical of that line of cases, was expressly disapproved.

Whether a judgment is joint depends on substance rather than form. The test is whether the same relief is granted against all the parties. Freeman on Judgments (5th Ed.) § 100. Compare Hampton v. Rouse, 13 Wall. 187, 20 L. Ed. 593; Simpson v. Greeley, 20 Wall. 152, 22 L. Ed. 338; Hanrick v. Patrick, 119 U. S. 156, 7 S. Ct. 147, 30 L. Ed. 396; Ex parte Sawyer, 21 Wall. 235, 22 L. Ed. 617. A stipulation to release a vessel seized under admiralty process is statutory. R. S. § 941 (28 USCA § 754). The statute provides that judgment thereon against both principal and surety may be recovered at the time of rendering the decree in the original cause. When such a bond is given, it is a substitute for the vessel. Gray v. Hopkins-Carter Hardware Co. (C. C. A.) 32 F.(2d) 876. A final judgment could have been rendered against the principal and surety on the stipulation in this case. The Belgenland, 108 U. S. 153, 2 S. Ct. 383, 27 L. Ed. 685. It is erroneous to say that the surety on a release bond in admiralty is not a party to the suit, although in the usual procedure he takes no part in the conduct of the case. The judgment in the instant case is somewhat ambiguous, in that it decrees that the libelant recover from the respondent, and that paragraph is silent as to the surety. But the intention of the court is made certain by the succeeding paragraph, which orders execution to issue against both the respondent and the surety on the stipulation without the necessity of any further proceeding. Of course, execution may be suspended pending any appeal, and, if the respondent should pay the judgment, there would be no liability on the surety. But, in the contingency that the judgment would not be paid, and no appeal was taken by the principal or upon an affirmance by this court, the libelant was at liberty to proceed to collect his judgment from the surety alone. The judgment was final, and the liability of the surety was not contingent. The interests of the principal and surety in the judgment were identical. It follows that the judgment appealed from was joint, and the surety was an indispensable party to the appeal. There was no summons and severance or equivalent proceeding. The motions to make the surety a party to the appeal came too late, as the time for appealing had long since expired.

The case of Ex parte Sawyer, 21 Wall. 235, 22 L. Ed. 617, has been cited as contrary to the above conclusions as to the necessity of the surety joining in the appeal. While that case was in admiralty, it appears from the statement of the case that the libel was in personam. Therefore the bond given on appeal from the District to the Circuit Court did not take the place of...