Empson v. Fortune

• Decision Date: 30 April 1918
• Docket Number: 14466.
• Citation: 102 Wash. 16,172 P. 873
• Parties: EMPSON v. FORTUNE et al.
• Court: Washington Supreme Court

172 P. 873

102 Wash. 16

EMPSON v. FORTUNE et al.

No. 14466.

Supreme Court of Washington

April 30, 1918

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Alice Empson against John Fortune and Max Kreielsheimer and another, as executors of the estate of Jacob Kreielsheimer, deceased. There was a judgment for plaintiff against John Fortune, but in favor of Max Kreielsheimer and another, executors, and plaintiff and John Fortune appeal. Affirmed.

John F. Murphy, Andrew J. Balliet, J. W. Robinson and C. H. Steffen, all of Seattle, for appellants.

Jay C Allen, of Seattle, for respondents.

PARKER J.

Alice Empson seeks recovery upon a supersedeas bond executed by John Fortune and Jacob Kreielsheimer, as sureties, and Hayes & Porter, Incorporated, as principal. Trial in the superior court for King county resulted in findings and judgment in favor of Alice Empson, awarding her recovery against John Fortune but denying her recovery against the executors of the estate of Jacob Kreielsheimer, deceased. John Fortune has appealed from the judgment rendered against him, and Alice Empson has appealed from the judgment in so far as it denies her recovery against the estate of Jacob Kreielsheimer deceased.

The controlling facts may be summarized as follows: On March 20, 1914, in an action pending in the superior court for King county, wherein Hayes & Porter, Incorporated, was plaintiff, and Alice Empson and Amos Wood were defendants, there was rendered upon the defendants' cross-complaint a money judgment in their favor against Hayes & Porter, Incorporated, for the sum of $1,500. Hayes & Porter appealed therefrom to this court and stayed execution thereon by causing to be executed and filed in the cause in the superior court a supersedeas bond in due form as prescribed by section 1722, Rem. Code, which bond was executed by Jonn Fortune and Jacob Kreielsheimer, as sureties. On March 26, 1915, Jacob Kreielsheimer died, and thereafter on April 16, 1915, Max and Simon Kreielsheimer were duly appointed and became the acting executors of his estate. On July 14, 1915, the case was disposed of by this court as follows:

'The judgment will be reversed, therefore, and the cause remanded with instructions to enter a judgment in favor of the respondents: (1) Canceling the contract of sale of the hotel property; (2) directing that the notes given to evidence the deferred payments be delivered up and canceled; (3) for a recovery against the appellant in the sum of $1,500; and (4) a judgment in favor of the appellant against the respondents confirming its possession of the hotel property. Neither party will recover costs in this court.' Hayes & Porter v. Wood, 86 Wash. 254, 150 P. 1.

This disposition of the cause, while in form a reversal of the $1,500 judgment rendered by the superior court, was a direction to that court to enter the same judgment and in addition thereto to grant other relief which had been prayed for by Wood and Empson in their cross-complaint. The only error of the trial court consisted in its failure to grant this additional relief, as is rendered plain by a reading of this court's decision. This court did not render any judgment against the sureties upon the supersedeas bond nor direct the superior court to render any such judgment. On November 22, 1915, the remittitur from this court having been transmitted to the superior court, that court entered its judgment and decree as directed by this court. Thereafter Amos Wood duly assigned in writing to Alice Empson all his interest in the judgment rendered by the superior court by direction of the Supreme Court, she thereby becoming the sole owner of the judgment. Thereafter, Alice Empson being unable to collect her $1,500 judgment, or any part thereof, from Hayes & Porter, commenced this action on March 10, 1916, against John Fortune and the executors of Jacob Kreielsheimer, as sureties upon the supersedeas bond. Thereafter judgment in this action was rendered on February 7, 1917, as above noticed. Other facts will be noticed as may become necessary in connection with our discussion of the several contentions made by counsel.

It is contended in behalf of appellant Fortune that, because the decision of this court in the case of Hayes & Porter against Wood and Empson in form reversed the judgment of the superior court and directed another judgment to be entered in that cause by that court, the sureties upon the supersedeas bond are not liable thereon. The argument is, in substance, that no judgment can be rendered against sureties upon a supersedeas bond unless the judgment appealed from is affirmed by the Supreme Court. We shall assume, for argument's sake, that the disposition of the cause in this court was a reversal of the first $1,500 judgment rendered by the superior court, though there seems to be fair ground for arguing that it was a reversal not in substance but in form only, in view of the fact that this court in the same decision directed exactly the same judgment to be entered in favor of and against the same parties, with the granting of other relief. A number of the decisions of the courts of other states are called to our attention which hold in substance as stated in the text of 2 R. C. L. 270, as follows:

'When an order is entered in an appellate court reversing a judgment, it is forthwith vacated and no longer remains in existence.'

This is a thought which counsel seeks to emphasize. But we think it is not controlling here in the light of our statute. Section 1722, Rem. Code, in so far as it relates to supersedeas bonds reads as follows:

'An appeal shall not stay proceedings on the judgment or order appealed from or any part thereof, unless the original or a subsequent appeal bond be further conditioned that the appellant will satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court may render or make, or order to be rendered or made by the superior court. * * *'

This language, it seems to us, renders it plain that a supersedeas bond secures something more than the mere payment of an affirmed judgment. If not, then we are wholly unable to assign any intelligible meaning to the concluding words of this quoted provision. This language seems peculiarly applicable to this case. Nothing could seem farther from the thought of this court when it in form reversed the money judgment in favor of Wood and Empson than an intent on its part to deny them recovery in that sum against Hayes & Porter, for in its same decision it directed a judgment in that amount to be entered by the superior court in favor of Wood and Empson against Hayes & Porter, together with judgment for other relief as to which the superior court had erred in failing to grant, as held by this court. We conclude therefore that the sureties, to wit, Fortune and the estate of Jacob Kreielsheimer, were liable upon the supersedeas bond for the payment of the judgment so directed to be entered by this court.

It is also contended in appellant Fortune's behalf that he was released as surety upon the supersedeas bond because this court did not render any judgment against him as surety when it remanded the cause to the superior court and did not direct that court to render any judgment against him as surety, and also because the superior court did not render any judgment against him as surety when it entered the judgment against Hayes & Porter, which was directed by this court to be rendered. The theory of counsel seems to be that the failure of action of the courts in this respect became in effect res adjudicata in his favor, upon the question of his liability upon the bond.

In so far as the failure of this court to render any judgment against the sureties is concerned, it seems plain from the language of section 1739, Rem. Code, relating to the rendering of judgments against sureties upon a supersedeas bond by this court, upon the final disposition of an appeal, that this court has no power to render such judgment except when it affirms a judgment of the superior court for the payment of which a supersedeas bond is given. That section reads:

'Upon the affirmance of a judgment or (on) appeal for the payment of money, the Supreme Court shall render judgment against both the appellant and his sureties in the appeal bond for the amount of the judgment appealed from (in case the bond was conditioned so as to support such judgment) and for the damages and costs awarded on the appeal; and in any other case of

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