Hampshire Arms Hotel Co. v. St. Paul Mercury & Indem. Co.

• Citation: 9 N.W.2d 413,215 Minn. 60
• Decision Date: 16 April 1943
• Docket Number: No. 33404.,33404.
• Court: Minnesota Supreme Court
• Parties: HAMPSHIRE ARMS HOTEL CO. v. ST. PAUL MERCURY & INDEMNITY CO. (WELLS, Intervener).

9 N.W.2d 413

215 Minn. 60

HAMPSHIRE ARMS HOTEL CO. v. ST. PAUL MERCURY & INDEMNITY CO. (WELLS, Intervener).

No. 33404.

Supreme Court of Minnesota.

April 16, 1943.

Appeal from Municipal Court of Minneapolis; Earl J. Lyons, Judge.

Action by the Hampshire Arms Hotel Company against the St. Paul Mercury & Indemnity Company to recover on a supersedeas bond executed by P. A. Wells as principal and defendant as surety, wherein P. A. Wells intervened. From an adverse order, the plaintiff appeals.

Order affirmed.

Best, Flanagan & Rogers and Leonard W. Simonet, all of Minneapolis, for appellant.

Gillette & Meagher and Louis B. Schwartz, all of Minneapolis, for respondents.

PETERSON, Justice.

Plaintiff, as the obligee, sues on the supersedeas bond executed by the intervener, Wells, as principal, and the defendant, as surety, in Hampshire Arms Hotel Co. v. Wells, 210 Minn. 286, 298 N.W 452, to recover its costs on the appeal and the amount of rent accruing between the taking and the dismissal of the appeal.

On September 27, 1940, plaintiff recovered a verdict against Wells in an unlawful detainer action, entitling it to judgment for the restitution of the premises involved. Although no judgment had been entered, Wells served notice of appeal from the judgment. Wells then caused judgment to be entered. Plaintiff promptly moved to dismiss the appeal as prematurely taken. Wells then procured an order amending and changing the date of the entry of judgment nunc pro tunc as of the day prior to that on which the appeal was taken. We granted plaintiff's motion to dismiss the appeal as prematurely taken. We also held that the order amending and changing the date of the judgment nunc pro tunc was a nullity.

The bond, which does not recite any consideration, is conditioned as follows:

"The condition of this obligation is such that, whereas, the said P. A. Wells appeals to the Supreme Court of the State of Minnesota, from the judgment of the Municipal Court of Minneapolis in a suit for forcible detainer by plaintiff v. defendant in which a judgment of guilty was rendered by said court and for a writ of restitution for the premises described in the complaint.

"Now, Therefore, If defendant, P. A. Wells, pay all costs of such appeal and abide the order the court may make therein and pay all rents and other damages justly accruing to the party excluded from possession during the pendency of the appeal, then this obligation shall be void, otherwise of force."

Defendant admitted liability for plaintiff's costs and disbursements on the attempted appeal, but not the rent accrued. It contends that the bond and all the proceedings on the attempted appeal were null and void. Plaintiff seeks to avoid the rule thus invoked by defendant by claiming that by the recitals in the bond that there was a judgment from which the appeal was taken defendant is estopped to assert the contrary. In reply defendant contends that, by procuring a prompt dismissal of the appeal, a necessary incident of which was an adjudication by this court that the appeal was in effect a nullity, plaintiff is estopped to assert the claimed estoppel. The court below sustained defendant's contention.

Apparently the bond was given under Minn.St.1941, § 605.11, Mason St.1927, § 9500, which provides that when an appeal is taken from an order, the filing of a supersedeas bond, in a sum approved by the judge making the order, shall stay all proceedings thereon. The judge before whom the unlawful detainer case was tried approved the amount of the bond, but did not order a stay.

The bond was given to create a statutory obligation. Where an appeal is unauthorized, a bond given for the sole purpose of taking such an appeal is void as a statutory obligation. Galloway v. Yates, 10 Minn. 75, 10 Gil. 53; United States v. Morris' Heirs, C.C.E.D.La., 153 F. 240; Brounty v. Daniels, 23 Neb. 162, 36 N.W. 463; 5 C.J.S., Appeal and Error, p. 1579, § 2035. In Hessey v. Heitkamp, 9 Mo.App. 36, 38, the court said: "The recognizance is void for every purpose, and of no obligatory force whatever upon the sureties, when the appeal is not properly taken."

An appeal bond insufficient or unenforceable as a statutory obligation may be valid as a voluntary, or so-called common-law, obligation. First State Bank v. C. E. Stevens Land Co., 119 Minn. 209, 137 N.W. 1101, 43 L.R.A., N.S., 1040, Ann.Cas.1914A, 1146.

An appeal bond, invalid for noncompliance with statute, is unenforceable as a voluntary obligation, if it lacks consideration. United States v. Morris' Heirs, supra; Post v. Doremus, 60 N.Y. 371; Ham v. Greve, 41 Ind. 531. Where the consideration claimed is that there was an appeal from a judgment, which had no existence, there is no consideration for the bond, because there could be no appeal. Brounty v. Daniels, and Post v. Doremus, supra. Since the bond in the instant case does not recite any consideration, it is insufficient to create liability.

Where, however, the appellate court takes jurisdiction and hears an unauthorized appeal, the obligors on the appeal bond receive a benefit, which is consideration for the bond. In such a case the grounds of the appellate court's decision, whether it be on the merits or...