McCORMICK
Circuit Judge.
September
19, 1892, the defendant in error filed in the office of the
clerk of the United States circuit court for the northern
district of Alabama its motion as follows:
'Comes the Third National Bank of Chattanooga, the
plaintiff in the above-entitled cause, and shows to this
honorable court that E. C. Gordon, the defendant
prayed and obtained a writ of error from the judgment and
proceedings had in this court touching said cause to the
honorable supreme court of the United States, all of which
fully appears from the records of this court; that the
defendant, the said E. C. Gordon, together with C. C. Harris
and Milton Humes, did on the 17th day of April, 1888, execute
an appeal bond in manner and form as required by law in such
cases, in the full and just sum of ten thousand five hundred
dollars, payable to the Third National Bank of Chattanooga
Tennessee, etc.; that said bond, together with the sureties
thereto, was approved by Honorable Harry T. Toulmin, district
judge. Said bond is referred to and made a part of this
application. Petitioner further shows unto your honor that
said writ of error in the above-entitled cause has been duly
considered, passed on, and in all things determined and
affirmed by the honorable supreme court of the United States,
as is shown by the mandate of said supreme court, which was
filed in this court on the 6th day of June, 1892, and
recorded in Minute Book I, page 421, and is here now
presented to this honorable court as a part of this
application. Petitioner prays that in accordance with the
judgment and mandate of the honorable supreme court of the
United States, that this court order an execution in manner
and form as required by law to issue against the property,
goods, and effects of E. C. Gordon, C. C. Harris, and Milton
Humes for the amount of said judgment, to wit, five thousand
two hundred and eighty-six dollars and sixty-seven cents,
with costs and interest from the date of rendition of said
judgment in this court, to wit, the 14th day of April, 1888,
together with all the damages allowed on such judgments under
the laws of the state of Alabama; and that notice of this
application be given to E. C. Gordon, C. C. Harris, and
Milton Humes to show cause, if any they have, why the prayer
of this petition shall not be granted.'
Service
of this motion was duly made on all the plaintiffs in error,
and October 12, 1892, demurrers were filed, as follows:
'Comes the defendants, C. C. Harris and Milton Humes, by
attorney, and demur to the notice and motion filed against
them by the plaintiff, and for cause of demurrer assign (1)
that this court is without jurisdiction to order the issue of
an execution against these defendants, as prayed for in said
motion or petition; (2) that the said motion or petition does
not make a case of which this court can take cognizance; (3)
that the statutes of the state of Alabama allowing damages on
judgment affirmed on writ of error or appeal are not
applicable to judgments affirmed by the supreme court of the
United States. Wherefore defendants pray the judgment of this
court whether they shall make further or other answer.'
October
31, 1892, these demurrers were overruled, and thereupon
Milton Humes and C. C. Harris, plaintiffs in error, proposed
to interpose to said motion a plea of payment, in which they
would allege that, since the rendition of the original
judgment, payments on said judgment have been made to
plaintiff to a large amount, exceeding one-half of said
judgment. Plaintiff denied that any such payment had been
made, and the court thereupon refused to permit said plea of
payment to be interposed, or to hear any evidence touching
said payments. It clearly appears from the bill of exceptions
and the statements of respective counsel on the oral argument
in this court that no plea of payment was in fact submitted,
or even prepared, and that what actually occurred was a mere
colloquium in which counsel for said plaintiffs in error
orally stated what they wished to plead, and counsel for the
defendant in error orally said that no payment had been made,
and the judge said the proposed plea and proof could not be
entertained, and the
counsel for said plaintiffs in error announced that they
excepted to the views expressed by the presiding judge, but
submitted no plea nor offered any proof. Thereupon, on the
record in the cause, including the supersedeas bond and the
mandate of the supreme court, which was in the customary
form, and without other evidence, the circuit court----
'Ordered, adjudged, and decreed that the plaintiff, the
Third National Bank of Chattanooga, recover of said
defendants, E. C. Gordon, principal, and C. C. Harris and
Milton Humes, sureties, the sum of seven thousand two hundred
and four and 85/100 dollars, ($7,204.85,) being said
judgment, and the interest thereon from date rendered to this
date, October 31, 1892, and the further amount of one hundred
and twenty-seven dollars, ($127.00,) the costs herein, being
in all seven thousand three hundred and thirty-one 85/100
dollars, ($7,331.85,) for which execution will issue.'
To
reverse which judgment, this writ of error was sued out. The
errors assigned are:
'(1) The court erred in the judgment rendered. (2) The
court erred in overruling the first ground of defendants'
demurrers to said motion of plaintiff. (3) The court erred in
overruling the second ground of defendants' demurrers to
plaintiff's said motion. (4) The court erred in
overruling the third ground of defendants' demurrers to
plaintiff's said motion. (5) The court erred in not
allowing defendants to file and interpose to said motion a
plea alleging that, since the rendition of said original
judgment, payments on said judgment have been made to a large
amount to plaintiff, exceeding one-half of said judgment. (6)
The court erred in not allowing the defendants to offer
evidence showing that, since the rendition of the original
judgment in said cause, payments on said judgment had been
made to plaintiff to a large amount, exceeding one-half of
said judgment. (7) The court erred in rendering said judgment
against the defendants on notice and motion, without other
process or pleadings.'
It will
be more convenient, and probably as satisfactory, to treat
these seven assignments as embraced in the first, and address
what we deem it incumbent on us to say to the whole case made
by the record. The rule is universal that the affirmance of
the judgment in the appellate court fixes the liability of
the sureties on a supersedeas writ of error bond, as it shows
conclusively that the principal obligor did not prosecute his
appeal to effect. Nothing will discharge the sureties on such
a bond but the reversal of the judgment or its satisfaction.
It is therefore not insisted that the sureties' liability
is not fixed by the affirmance. The contention is as to the
lawful method and correct practice to enforce that liability
in this case. In Babbitt v. Finn, 101 U.S. 7, from
which, with very slight modification, the foregoing
suggestions have been drawn, it is further said:
'As between the obligors and obligees, all the obligors
are principal debtors, though, as between each other, they
have the rights and remedies resulting from the relation of
principal and surety. When they execute the bond, they assume
the obligation that they will answer all damages and costs if
the principal fails to prosecute his appeal to effect and
make his plea good, from which it follows that if the
judgment is affirmed by the appellate court, either directly
or by mandate sent down to the subordinate court, the
sureties proprio vigore become liable to the same extent as
the principal obligor.'
In Blossom v. Railroad Co., 1 Wall. 655, Judge
Miller, in illustrating the matter he was therein discussing,
said:
'Sureties, signing appeal bonds, stay bonds, delivery
bonds, and receiptors under writs of attachment, become quasi
parties to the proceedings, and subject themselves to the
jurisdiction of the court, so that summary judgments may be
rendered
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