Harris v. Regester

• Decision Date: 10 January 1889
• Citation: 16 A. 386,70 Md. 109
• Parties: HARRIS v. REGESTER ET AL.
• Court: Maryland Court of Appeals

16 A. 386

70 Md. 109

HARRIS v. REGESTER ET AL.

Court of Appeals of Maryland

January 10, 1889

Appeal from Baltimore city court.

Action by J. Regester & Sons against John McCart, principal, and John Harris, surety, on an appeal-bond. Verdict and judgment for plaintiffs, and defendant Harris appeals.

Argued before ALVEY, C.J., and MILLER, IRVING, ROBINSON, and MCSHERRY, JJ.

Albert Ritchie, for appellant.

D Eldridge Monroe and Samuel Regester, for appellees.

MCSHERRY J.

Samuel W. Regester and others, trading as J. Regester & Sons, sued John McCart in the Baltimore city court in an action of covenant, and recovered a verdict, upon which judgment was duly entered. McCart then appealed to this court. He as principal, and John Harris as surety, executed an appeal-bond, which was approved by a deputy in the office of the clerk of the city court; the clerk himself being at the time under treatment in Spring Grove Insane Asylum for some mental disorder, though not having been adjudged non compos mentis. The judgment against McCart was affirmed by this court in March, 1888, (McCart v. Regester, 13 A. 361,) and on the 4th of April following, suit was instituted by Regester & Sons against McCart and Harris on the appeal-bond referred to. McCart suffered judgment by default to go against himself, but Harris appeared, and pleaded several defenses, among which were these, viz.: That the bond was never delivered; that it was not approved by the clerk or the judge of the Baltimore city court; and that it is not in conformity with, or authorized by, the statutes providing for appeal-bonds. Issues were properly framed, and the case proceeded to trial. During its progress two exceptions were taken by Harris,--one to the exclusion of evidence, and the other to the granting of the appellees' and the rejection of the appellant's prayers. Judgment having been finally entered against Harris, he has taken this appeal.

The principal and controlling question in the case arises under the fourth prayer presented by the appellant and rejected by the court. Many of the other questions discussed in argument are of the narrowest technical character, not at all decisive of the case, and not likely to arise again, while the remaining ones, though subordinate to the main one, are of sufficient importance to require a separate consideration. The appellant's fourth prayer asked the court to instruct the jury "that the said alleged bond is not in conformity with the statutes providing for appeal-bonds, and the said clerk had no authority to accept or approve the same; there was no legal delivery thereof, and the plaintiffs are not entitled to recover." This goes to the very foundation of the case, and, if it correctly announces the law, wholly precludes a recovery. Hence whether this bond is or is not in conformity with the statutes providing for appeal-bonds is the inquiry to which our attention must be first directed. Code 1888, art. 5, § 5, provides that "no execution upon any judgment or decree * * * shall be stayed or delayed unless the person against whom such judgment or decree shall be rendered or passed, * * * or some other person in his or their behalf, shall immediately upon praying an appeal * * * enter into bond with sufficient securities in at least double the sum recovered," etc. Precisely the same words, "sufficient securities," are used in Code 1860, art. 5, § 31; and this section was taken from Acts 1826, c. 200, § 1, which repealed and replaced Acts 1811, c. 171, and 1713, c. 4,--all of which required sureties in such an appeal-bond. The plural "securities," or "sureties," is thus used throughout these statutes, (the earliest of which was enacted a century and three-quarters ago,) and it can scarcely be assumed that it was not designedly done. The form given in Harris' Entries provides spaces for two securities; and Mr. Evans, in his work on Maryland Practice, in treating of appeal-bonds, and referring to the act of 1826, c. 200, says on page 430: "This bond must be with two sureties approved," etc. Though the form referred to and the statement made by Mr. Evans are not authoritative declarations of the meaning of the statute, they are cited to indicate the general understanding of the profession, and to show the construction followed in actual practice for a great number of years. Where the legislature has deemed it expedient to require only a single surety on a bond, it has distinctly declared that such bond should be entered into "with security," (article 9, § 19, Code 1888,) or "approved and sufficient security," (article 5, § 89, Id.) etc.

It would seem, therefore, upon looking to the language of the statute, that an appeal-bond, effective to stay execution on a final judgment or decree, must be entered into by at least two sufficient securities. While this question has never been passed upon by this court, exactly similar statutory provisions have been construed by other appellate courts whose decisions are entitled to great weight. Blake v. Sherman, 12 Minn. 420, (Gil. 305;) Beebe v. Young, 13 Mich. 221; Van Wezel v. Van Wezel, 3 Paige, 38; Coal Co. v. Dyett, 4 Paige, 273. In Blake v. Sherman an attachment was issued upon an affidavit of the plaintiff against the property of the defendant. A motion was made to dissolve the attachment, and among other grounds it was urged that the bond required by the statute had not been given. Section 131, p. 467, Gen. St., provided that, "before issuing the writ, the judge or court commissioners shall require a bond on the part of the plaintiff, with sufficient sureties, conditioned," etc. The instrument objected to was not a bond, but an undertaking or covenant signed by the plaintiff, as principal, and one surety. The court, on page 424, says: "We think that this section of the statute is not to be regarded as directory. There must be a bond, (a term well understood) with a penalty and a condition, and with two or more sureties." Section 6738, 2 How. Ann. St. Mich., which was taken from section 144, c. 90, Rev. St. 1846, and also from section 3597, Comp. Laws 1857, provides that, upon an appeal from a decree or final order of a circuit court in chancery, "the appellant shall, within said forty days, file with said register a bond to the appellee or appellees, with sufficient sureties, approved by a circuit judge," etc. In Beebe v. Young, which was an appeal in chancery, a motion was made to dismiss the appeal upon two grounds, the second of which was "that the appeal-bond is executed by one surety only." Judge COOLEY, in delivering the opinion of the court upon this motion, said: "The objection to the bond we think well taken. The statute requires a bond with sufficient sureties, and a single surety does not answer its demands. Van Wezel v. Van Wezel, 3 Paige, 38; Coal Co. v. Dyett, 4 Paige, 273. And as the statute provides that unless 'such' bond shall be filed within the time limited no appeal shall be allowed, we must dismiss the appeal, unless we are authorized to permit an amendment, or to suffer a new bond to be substituted." In Van Wezel v. Van Wezel there was a motion to dismiss the appeal. Chancellor WALWORTH, in the course of his opinion, said: "But the appeal was not regularly entered, because, by law, there should have been two or more sureties in the appeal-bond. The statute requires a deposit of money on the appeal, or a bond with sureties, in the plural. 2 Rev. St. p. 605, § 80. Although the number is not specified in this part of the statute, it requires two to constitute sureties." The appeal was dismissed. In Coal Co. v. Dyett, the same chancellor observed: "The eightieth section of the statute (2 Rev.

St. 605) declares that the appeal shall not be effectual until a bond, with sureties, shall be given to the adverse party, and approved of by the proper officer of the court. Under this statute, it has been decided that the term 'sureties,' in the plural, requires two or more sureties to join in the bond." We see no reason for not giving to the language of our own statute the same construction. When the legislature used the word "securities," in the plural, we are certainly not warranted in saying that only one surety was intended. The general assembly must be regarded as having meant what the word used by it distinctly imports, and it would be little, if anything, short of direct judicial legislation, to hold that one surety is tantamount to, or gratifies the demand for, "sufficient securities." The legislature has declared in plain terms that in such a bond as this there must be securities. This is a matter wholly within its discretion, and undoubtedly within the scope of its exclusive powers. The expediency or policy of such an enactment cannot be inquired into or impeached by any other tribunal known to our laws. Obviously, therefore, the courts are powerless to nullify the statute, in this particular, by substituting for its actual provision a different requirement. The consequences of this conclusion in this case may be very injurious to the appellees, but the law is so written, and any attempt to rescue the bond by a strained or a forced construction of the act of assembly would, to the extent that it unsettled the law as enacted, lead to more serious evils.

It has been insisted that section 7, art. 1, Code, cures the defect in the bond. That section provides: "The singular always includes the plural, and vice versa, except where such construction would be unreasonable." If, however under this section, we are to treat the plural as meaning the singular, and therefore to read section 31 of article 5 of the Code, which requires "sufficient securities" to be given, as though the singular number had been used, and consequently that only one security is necessary, it...