Gordon v. Third Nat. Bank of Chattanooga

• Decision Date: 27 June 1893
• Docket Number: 155.
• Citation: 56 F. 790
• Parties: GORDON et al. v. THIRD NAT. BANK OF CHATTANOOGA.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F. 790

GORDON et al. v. THIRD NAT. BANK OF CHATTANOOGA.

No. 155.

United States Court of Appeals, Fifth Circuit.

June 27, 1893

Wm Grant, R. C. Brickell, and J. H. Sheffey, for plaintiffs in error.

Wm Richardson and Geo. T. White, (White & Martin, on the brief,) for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

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 on their bonds or recognizances.'

This language of the eminent judge, in the connection...