Ferguson v. Dent

• Decision Date: 30 September 1886
• Citation: 29 F. 1
• Court: U.S. District Court — Western District of Tennessee
• Parties: FERGUSON and others v. DENT and others.

29 F. 1

FERGUSON and others v. DENT and others.

United States Circuit Court, W.D. Tennessee.

September 30, 1886

(Syllabus by the Court.)

The omission from an appeal-bond of the statutory stipulation as to damages required to effect a supersedeas does not necessarily entitle the party to whom the property is adjudged to a discharge of the receiver, and possession of the property, pending the appeal. The subsequent custody is a matter which the court will regulate, upon the equitable circumstances of each case, independently of the fact whether there has been a statutory supersedeas of the final decree or not.

Whether the circuit court has authority, after appeal, to allow an amendment to a supersedeas bond, quaere. But, in the exercise of its jurisdiction to determine whether it will grant an application to execute the decree because of a defective bond which cannot operate as a supersedeas, it may withhold execution until the supreme court can act in the matter; and should do so, if there be equitable considerations of mistake which would induce a court of equity to reform the bond on a bill for that purpose. On such an application the court is not compelled to act solely upon the one fact of a defective bond. It will inquire at large, and exercise its equitable powers of relief, as in other cases, upon all the facts. ^[1]

The court will not sanction the dispossession of its receiver by a writ issued by the clerk upon the discovery of a defect in the supersedeas bond, although the final decree, if not superseded, might authorize it. The proper practice is to apply to the court to execute the decree.

T. B Edgington, for plaintiffs.

Poston & Poston and L. W. Finlay, for defendants.

HAMMOND J.

The opinion of the court, and the decree entered upon this application, which is appended as useful to show what was actually done in pursuance of the opinion, sufficiently state the facts. At the last term of the supreme court the plaintiffs applied for a mandamus to compel the circuit court to vacate the order recalling the writ issued by the clerk or to otherwise execute the decree by discharging the receiver and surrendering the possession to them. The mandamus was refused, but without any opinion or other information as to the grounds of the refusal. The penalty of the bond as actually executed was as follows:

'Whereas, the above-named George G. Dent and others have prosecuted a writ of appeal to the supreme court of the United States to reverse the judgment rendered in the above-entitled action by the circuit court of the United States for the Western district of Tennessee, now, therefore, the consideration of this obligation is such that if the above-named George G. Dent and others shall prosecute said writ of appeal to effect, and answer all costs; or if they shall fail to make good their plea, then this obligation shall be void; otherwise to remain in full force and virtue.'

This bond, as executed, was copied by the deputy-clerk from a form filled up by one of the lawyers in the case, and it does not distinctly appear whether the deputy-clerk or the lawyer left out the words 'and damages,' for which a blank was left in the printed form in use in the clerk's office, to be inserted when desired by parties to make a supersedeas bond. On discovery of the omission, and on application to him, the clerk issued the writ of possession ordered by the final decree, and the marshall put the plaintiffs in possession. This action was revoked by the district judge, and the receiver reinstated. The plaintiffs, having been refused a mandamus by the supreme court, moved in the circuit court (1) to now discharge the receiver, and surrender possession to them in accordance with the final decree; and (2) to vacate the order of revocation. The defendants moved to be allowed to amend the bond or to file a new one.

The affidavits here show, what is well known to the court, that it was intended by the defendants and the court that this bond should be a supersedeas bond. The penalty was sufficiently large to cover any damages likely to come within the liability pending the appeal. Kountze v. Omaha Hotel Co., 107 U.S. 378; S.C. 2 S.Ct. 911; Roberts v. Cooper, 19 How. 373.

I cannot think, as suggested by the plaintiffs' counsel, that the words necessary to make it in form a supersedeas bond were designedly omitted in order to evade that responsibility. The surety understood the full extent of it, as well as the defendants; for when he came to sign the bond he inquired of me, and it was fully explained to him, as it had been to Mr. Frazer when he drew the bond. I must protest, good-naturedly of course, against the inaccuracies of Mr. Frazer's affidavit. He is mistaken when he states that I undertook to see that 'the appeal was perfected as affiant desired. ' I read to him the statute, the twenty-ninth rule of the supreme court, and certain passages in Phillips' Practice, and warned him of the strictness of the practice. I subsequently saw in the clerk's office the soiled form of bond mentioned in the affidavits as in his hand-writing, but did not inspect it, and do not know whether it contained the words 'and damages' or not; but he left my chambers to write a bond which would be sure to have those words in it. He is altogether mistaken when he says in his affidavit that, 'under the direction of the court, the clerk made out the bond as filed. ' I gave no directions about it, and had nothing to do with it, except to justify the surety and approve it, which I did, as I always do, without the least scrutiny of the bond; for it is the business of counsel to see that it is in the form they wish it, and it is a matter about which I should not and do not meddle at all.

But, in my own view, it is wholly immaterial how this mistake in the bond occurred. It is not in form a supersedeas bond. Yet it operated de facto as a supersedeas bond for seven months from September 29, 1885, the date it was filed, until April 23, 1886, when counsel for the plaintiffs first discovered the omission, and applied to the clerk for a writ of possession to oust the receiver. I was then absent at Cleveland, Ohio, holding court, and, upon my return, sua sponte revoked the action of the clerk, and restored the possession to the receiver, because it was not, in my judgment, a case for action by the clerk, and the receiver could not or properly should not be dispossessed except upon the order of the court, and possibly not without an application to the supreme court itself.

It is true that the opinion in the case, and the decree following it, directs that 'the receiver deliver possession to the plaintiffs, for which purpose a writ of possession should issue to place them in the quiet possession of the property, freed from all tenants of the receiver and their effects,' (Ferguson v. Dent, 24 F. 426;) but this was merely a mode of declaring the right of the plaintiff to the property, and was not intended, at least, to direct that the receiver be dispossessed without a further order of the court to that end. Strictly speaking, there is no such thing in our equity practice as a writ of possession, and certainly none is ever needed to dispossess a receiver of the court. If a receiver should refuse to obey an order of the court, possibly a writ of assistance might be issued by the clerk, under equity rule 9; but even that is doubtful, for it seems to provide rather for that writ as against the parties to the suit without an application to the court which otherwise would have to be made. 2 Daniell, Ch.Pr. (1st Ed.) 724; 1 Daniell, Ch.Pr. 643. We have, in Tennessee chancery practice, a writ of possession in analogy to that writ in ejectment at law; but that, of course, has no application here, though it was used in Wallen v. Williams, 7 Cranch, 278. At all events, this decree meant no more than would have been implied if it had not contained the directions as to a writ of possession against the receiver. Mr. Daniell says:

'The appointment of a receiver, made previous to a decree, will be superseded by it, unless the receiver is expressly continued. A receiver, however, is never discharged by decree, but the application for his discharge must be made by petition,' etc. 3 Daniell, Ch.Pr. (1st.Ed.) 408; 2 Daniell, Ch.Pr. (5th Ed.) 1765.

Naturally enough this final decree was treated as a direct order of the court to dispossess the receiver; and, strictly, there should have been an order continuing his possession after the decree, and pending the appeal; so while, under the circumstances, neither the plaintiffs nor the clerk would be guilty of willful contempt in dispossessing him, yet, since he had been, without any special order, continuously in possession since the appeal, and repeated orders had been given for his direction in the management of the property, it seemed to me that, whether the bond justified that continued possession or not, the application to the court, which is now made, should have been then made, before turning him out, notwithstanding the command of the final decree. Just as if the final decree, or one subsequently made, had contained specific directions for continuing the receiver pending the appeal, the clerk would not have issued the writ; so that, possession having been continued, in fact, he should not have issued it without a further order to that effect. For these reasons the motion to vacate the order of revocation is denied. I cannot sanction any interference with the receiver's possession without the special order of the court whose receiver he is; and, under the circumstances stated, the final decree cannot be treated as such sanction, whether the bond be a supersedeas bond or not.

It does not follow, even at law, that the court...