Fullerton v. Miller

• Decision Date: 08 June 1864
• Citation: 22 Md. 1
• Parties: JOHN FULLERTON ET AL. v. WILLIAM D. MILLER.
• Court: Maryland Court of Appeals

22 Md. 1

JOHN FULLERTON ET AL. v. WILLIAM D. MILLER.

Court of Appeals of Maryland.

June 8, 1864

APPEAL from the Superior Court of Baltimore City:

This was an action upon an appeal bond, docketed by consent January 9th, 1858, between the appellants as plaintiffs and the appellee as defendant. The case is stated in the opinion of this Court.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J Wm. S. Bryan, for the appellants:

1. At common law the plaintiff would have been entitled to recover the penalty of the bond. By the Statute of 8 and 9 William III. the damages sustained would have been ascertained by a jury, and such should be the rule in this case. When the Court of Appeals affirmed the order of the Circuit Court dissolving the injunction, a failure to prosecute the appeal with effect occurred, and the condition of the appeal bond was broken. Karthaus vs. Owings, 6 H. &amp J. 134. Same case, 2 G. & J. 430.

2. By this breach the appellants became entitled to damages, and the measure of the damages was the injury they sustained by the appeal. Karthaus vs. Owings, ubi supra. Wood's Ex. vs. Fulton, 2 H. & G. 71.

3. By the appeal, the appellant, Fullerton, was prevented from prosecuting his claim for the debt mentioned in the drafts and in consequence of the delay thus caused, he lost the sums due him by the McEldowneys. Smith vs. Dorsey, 6 H. & J. 261. Thompson vs. McKim, 6 H. & J. 302. Act of 1826, ch. 200, sec. 1.

4. To recover the loss thus sustained by Fullerton, it was necessary and proper that the action should have been brought by all the obligees. Wallis et al. vs. Dilley et al. 7 Md. 238.

5. The defendant by his plea admitted the factum of the appeal bond, and assumed the burden of proving that he had prosecuted his appeal with effect. The execution and approval of the bond were also admitted by counsel at the trial. By the execution of the bond, the obligors were estopped to deny any of the recitals in it, such as the issuing of the injunction, its dissolution, & c. Under the pleadings and admission of counsel therefore, nothing remained to be found by the jury but the affirmance of the order of dissolution by the Court of Appeals and the facts showing the damage caused by the appeal. These questions were submitted to them by the prayers. Lloyd vs. Burgess, 4 Gill, 187--followed and approved by Hardey vs. Coe, 5 Gill, 189, and Frantz vs. Smith, 5 Gill, 280.

6. The appellee's 4th point raises a question not made in the Court below; but waiving this, the question of indebtedness is one of fact properly left to the jury. Gardiner vs. Lewis, 7 Gill, 388. Green & Trammel vs. Trieber, 3 Md. Rep., 13.

7. In reference to appeals from orders dissolving injunctions, appeal bonds, and their effect, I refer to Acts of 1832, ch. 197; 1843, ch. 73; 1713, ch. 4, and 1826, ch. 200.

Wm. A. Fisher, for the appellee:

1. The appellants could claim under the condition of the appeal bond only the " damages, charges and costs decreed by the Circuit Court," and the " costs and damages awarded by the Court of Appeals," and those have been paid by the appellee. The obligation of the appellee under the bond cannot be enlarged beyond its terms. 2 Parsons on Contracts, pp. (7) and (11). Beall vs. Greenwade's Adm. 9 Md. 193. Webster's Dictionary, " Award. " Janney vs. Sprigg, 7 Gill, 202.

2. If the bond was not sufficiently comprehensive under the circumstances, the appellants were not stayed, and should have proceeded non obstante --they cannot enlarge the appellee's contract. Act of 1826, ch. 200, sec. 1. Johnson vs. Goldsborough, 1 H. & J. 499.

3. But it is insisted that even if the Court can look to the Act of Assembly, the appellee can be rendered liable only for the costs in the Circuit Court and Court of Appeals. Act of 1826, ch. 200, sec. 1. Wood vs. Fulton & Starck, 2 H. & G. 77. Smith vs. Dorsey, 6 H. & J. 263. Eppes vs. Thurman, 4 Randolph, (Va. ) 384. McKay vs. Hites, Ex. 4 Randolph, (Va. ) 564.

The appeal bond sued upon, stayed any execution upon the decree, but did not prevent the collection of the bills. Act of 1826, ch. 200, sec. 1. Jacob's Law Dictionary, " Execution. " Thompson vs. McKim, 6 H. & J. 332.

4. The prayers of the appellants are also defective, because they submit to the jury the question whether " Robert and John McEldowney were indebted " to the plaintiff Fullerton, " on the drafts mentioned in the injunction; " whereas of such indebtedness there was no legally sufficient evidence offered, and the question of " indebtedness " involved a matter of law for the Court; and because they are based upon the assumption that the appeal and bond legally prevented the collection of the bills. Handy vs. Johnson, 5 Md. Rep. 466. Creamer vs. Stephenson, 15 Md. Rep. 223.

5. Code, Art. 25, sec. 23, title " Appeals from Courts of Equity," and secs. 29, et seq., title " Appeals from Courts of Law or Equity."

OPINION

BARTOL J.

This was an action on an appeal bond, docketed by consent, between the appellants as plaintiffs and the appellee as defendant. No question arises upon the pleadings. The facts appearing in the bill of exceptions, so far as it is material to state them, are that Robert and John McEldowney exhibited in the Circuit Court, for Baltimore City, their bill of complaint against John Fullerton and others, and obtained an injunction against Fullerton and the other respondents, restraining them from negotiating or collecting certain two sight drafts for $2,500, each payable to the order of Fullerton, and drawn by R. McEldowney & Co. & c. The injunction was dissolved by the order of the Circuit Court on the 14th of November 1855, from which order an appeal was taken, and the appeal bond sued on was executed; the appellee being one of the sureties and obligors therein. The order of the Circuit Court dissolving the injunction was affirmed by the Court of Appeals on the 22d day of June 1857. It was admitted that R. and J. McEldowney were in business and in good credit, and paying their notes at the time of the appeal, and that they continued in good credit until some time in December 1856, when they failed in business and became insolvent. The two drafts held by Fullerton, mentioned in the injunction were produced, and were admitted to have been drawn and signed by McEldowney & Co. It was also admitted that the defendants in this suit had paid to the plaintiffs all the costs decreed, in the Chancery cause, by the Circuit Court and the Court of Appeals. A verdict was rendered by the jury for the plaintiffs for nominal damages, upon which judgment was entered, and the plaintiffs prosecuted this appeal; assigning for error the rejection by the Superior Court of two prayers offered by them, to the refusal of which they excepted. These prayers present the question of the measure or quantum of damages the plaintiffs were entitled to recover, and assert the propositions that the appeal prevented the plaintiffs from attempting to collect, negotiate, or protest the drafts mentioned in the injunction, while the appeal was pending; and if the jury should find the amount of the drafts could have been collected if the appeal had not been taken, and that it was lost to Fullerton, by reason of the delay caused by the appeal, then the plaintiffs were entitled to recover the amount of the loss so sustained by Fullerton. The decision of the question presented by this exception depends upon the construction of the condition of the bond, which is in these words, " Now the condition of the above obligation is such, that if the said complainants shall not cause a transcript of the record and proceedings of the said orders to be transmitted to the Court of Appeals, within the term required by law, and prosecute the said appeal with effect, and satisfy and pay unto the said defendants, or to such of them as may be entitled thereto, their executors, administrators and assigns, in case the said last mentioned order dissolving the said injunction shall be affirmed, as well all and singular the damages, charges and costs, decreed by the Circuit Court aforesaid, to be paid by R. McEldowney & Co., as also, all costs and damages that shall be awarded by the Court of Appeals, then this bond to be of full force and effect, otherwise of no effect."

Before expressing our opinion upon the construction of the words of this condition, we shall consider: First, the power and authority of the Chancery Court to require an appeal bond in such a case: And secondly, the effect of the bond when approved, in staying the operation of the order appealed from. Prior to the Act of 1832, ch. 197, no appeal was allowed from...