Harp v. American Sur. Co. of N. Y.
| Decision Date | 31 May 1957 |
| Docket Number | No. 34074,34074 |
| Citation | 50 Wn.2d 365,311 P.2d 988 |
| Parties | Effie HARP, Appellant, v. AMERICAN SURETY COMPANY OF NEW YORK, a corporation, Respondent. |
| Court | Washington Supreme Court |
Venables, Ballinger & Clark, Seattle, for appellant.
Lewis L. Stedman, Seattle, for respondent.
Quaere: Where a supersedeas bond on appeal from the superior to the supreme court requires that the principal on the bond
'* * * shall satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the said Supreme Court may render or make, or order to be rendered or made by said Superior Court * * *' (italics ours)
is the surety liable for the failure of the principal to make payments as directed by the superior court on a remand after a reversal of the decree or judgment appealed from, where the determination of whether any payments are to be made, and if so, the amount thereof was left to the discretion of the superior court by the supreme court's opinion and the judgment entered on the appeal?
Answer: The surety is not liable.
Facts Which Raise the Issue: David Harp commenced an action for divorce against Effie Harp on the ground that the parties had lived separate and apart for five consecutive years or more. Mrs. Harp cross-complained for separate maintenance. The superior court dismissed the divorce action and granted relief as prayed for in Mrs. Harp's cross-complaint and directed Mr. Harp to pay her $100 per month, commencing December 15, 1952, and awarded her attorney fees in the amount of $150.
Mr. Harp appealed and the American Surety Company of New York, a corporation, became his surety on a supersedeas bond in the amount of $1,000. On the appeal this court reversed the superior court and, by its opinion, directed: the entry of a decree awarding Mr. Harp a divorce; the dismissal of Mrs. Harp's action for separate maintenance; and that the superior court 'reopen the case and determine the questions of property division, alimony, and attorneys' fees.' Harp v. Harp (1953), 43 Wash.2d 821, 264 P.2d 276, 278.
The judgment entered by this court on the appeal provided that
'* * * the judgment of the said Superior Court be, and the same is hereby reversed and the cause remanded with directions to proceed as the opinion directs * * *' Supreme Court Journal, Vol. 41, p. 110.
The cause was reopened by the superior court and a divorce was granted to Mr. Harp, as directed, July 16, 1954. The divorce decree provided in part that Mr. Harp pay Mrs. Harp the sum of $100 per month, commencing December 15, 1952, 'in accordance with the order heretofore entered as support and maintenance of the defendant, to continue until April 23, 1954,' and thereafter he was to pay her $50 per month as a continuing obligation and, in addition, he was to pay to her attorneys $500 for their services.
There was no appeal from this decree, and no payments were made as directed therein. Mrs. Harp sued the American Surety Company on the supersedeas bond to recover the full amount of the liability thereunder, i. e.: $1,000. The trial court sustained a demurrer to her complaint. Thereafter an order of dismissal was entered and from that order she appeals.
Reasons for the Answer Given: It is obvious that reversal of a money judgment, without more, terminates the liability of a surety on a supersedeas bond on the appeal. DeVries v. United Employers' Corp., 1941, 309 Ill.App. 639, 33 N.E.2d 728; Arant on Suretyship § 61, p. 216.
It is equally obvious that where an appellant secures a reversal, and the supreme court directs the superior court to enter a judgment in a different but certain amount, or to enter a specified order, which leaves no discretion in the superior court, that, under the italicized language quoted from the supersedeas bond as set forth in the Quaere, the surety is liable up to the amount of the bond if the principal fails to pay the judgment or obey the order entered by the superior court. Such a judgment or order is one which, in the language of the bond, the supreme court has...
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...initiate a separate review of the lower court decision entered after issuance of the mandate. 16. Stevenson cites Harp v. American Surety Co., 50 Wn.2d 365, 311 P.2d 988 (1957) and McCausland v. McCausland, 129 Wn. App. 390, 118 P.3d 944 (2005), rev'd on other grounds, 159 Wn.2d 607, 152 P.......
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...settled principle that our mandate is "binding" on the superior court and "must be strictly followed." Harp v. American Sur. Co. of New York, 50 Wash.2d 365, 368, 311 P.2d 988 (1957); State ex. rel. Smith v. Superior Court for Cowlitz County, 71 Wash. 354, 357, 128 P. 648 (1912). The Suprem......
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