Lamb v. Ewing, 110.

• Decision Date: 27 January 1893
• Docket Number: 110.
• Citation: 54 F. 269
• Parties: LAMB et al. v. EWING.
• Court: U.S. Court of Appeals — Eighth Circuit

54 F. 269

LAMB et al. v. EWING.

No. 110.

United States Court of Appeals, Eighth Circuit.

January 27, 1893

Statement by SHIRAS, District Judge:

On the trial of this case in the court below a jury was waived, and from the findings of fact made by the court the following statement is condensed, sufficient of the material facts being stated to show the applicability of the points made by counsel in support of the errors assigned:

On the 17th of November, 1875, Charles W. Seymore and William W Wardell recovered judgment in an action at law against William P. Young for the sum of $6,500 in the United States circuit court for the district of Nebraska. Upon the assumption that the provisions of the statutes of Nebraska authorizing a stay of execution upon giving security as therein provided could be availed of by a defendant in the United States courts in Nebraska, a stay bond was executed by William P. Young, with five sureties, including one Milton F Lamaster, and filed with the clerk. Upon the expiration of the time of the stay of execution, as provided for by the statutes of the state, and in accordance with the provisions thereof, the clerk issued an execution against William P Young and the several sureties on the stay bond, which writ was by the marshal levied upon certain realty belonging to Milton F. Lamaster, one of the sureties on the bond; and a sale of the property was had in due form, the same being purchased by Thomas Ewing for the sum of $5,600. Upon a report made of this sale to the court, the same was confirmed, and a marshal's deed was executed and delivered to the purchaser, and an order was entered directing the marshal, upon the execution of a good and sufficient bond, to be approved by the judge or clerk, and conditioned for the repayment into court of the purchase money in case the order confirming the sale should be reversed by the supreme court, to pay to the several claimants the share due them of the money realized from the sale of the realty as stated. It further appears that by an assignment duly made by the plaintiffs in the judgment against William P. Young there had been assigned to S.W Little and D. B. Alexander an interest therein to the amount of $2,000. It further appears that the marshal paid over to the clerk of the court the money by him collected on the execution sale of the property of Lamaster, as above stated, and for the purpose of obtaining from the clerk the amount due them as assignees of part of said judgment against Young the following bond was executed by S.W. Little and D. B. Alexander, with Walter J. Lamb and Lorenzo W. Billingsley as sureties:

'In the Circuit Court of the United States for the District of Nebraska.

'Charles W. Seymore and William W. Wardell, Plaintiffs, vs. William P. Young, Defendant.

'Bond for the Repayment of Money into Court.

'Know all men by these presents that we, S.W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, of Lancaster county, state of Nebraska, are held and firmly bound unto Elmer D. Frank, clerk of the United States circuit court for the district of Nebraska, in the sum of thirty-four hundred dollars, good and lawful money of the United States, to be paid to the said Elmer D. Frank, clerk of the United States court, as aforesaid, his executors, administrators, and assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, our executors, and administrators firmly by these presents. Sealed with our seals, and dated the 3rd day of May, A.D. 1884. The condition of the above obligation is such that whereas, on the 29th day of January, A.D. 1882, Hon. Elmer S. Dundy, judge of the circuit court of the United States for the district of Nebraska, made the following order in the above-entitled cause, then pending in said court, to wit:

'Seymore & Wardell v. Young. 138 C.

"It is ordered in the above case that upon giving a good and sufficient bond to the approval of the judge or clerk, conditioned for the repayment into court of the purchase money in case the order of confirmation in this case is reversed by the supreme court of the United States, the marshal pay to the said complainant from the purchase money received in said case to each one entitled thereto, as his or her interest may appear, bond to be given in double the amount of money to be paid to any person or party entitled to the same, and the marshal is further directed to make and deliver to the purchaser.

(Signed)

"Elmer S. Dundy, Judge.'

'And whereas, it appears from the records of said court in said cause that S.W. Little and D. B. Alexander are entitled to receive the sum of $1,485 of said purchase money; and whereas, the United States marshal of said court has paid all of said purchase money into the hands of the clerk of said court, and by him placed in the registry of said court since said order was made; and whereas, the said Elmer D. Frank, clerk of said court, has this day paid to the said S.W. Little and D. B. Alexander out of said purchase money the said sum of fourteen hundred and eighty-five dollars upon the terms of the above and foregoing order of the said court: Now if the above S.W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, shall well and truly comply with the order of said court as hereinbefore set forth in relation to the said sum of fourteen hundred and eighty-five dollars, received as aforesaid by the said S.W. Little and D. B. Alexander, then this obligation to be void; otherwise to remain in full force and effect. All erasures and interlineations made before signing.'

Upon the filing and approval of this bond, the court made an order directing the clerk to pay to said Little and Alexander, out of the funds in the registry of the court, the proportionate share coming to them as owners of the interest assigned them in the original judgment, and in pursuance of this order the clerk paid them the sum of $1,485.

On the 17th of July, 1882, Thomas Ewing, for the consideration of $5,600, sold and conveyed the realty by him bought at the marshal's sale to John W. Keeler, warranting his title thereto. Thereupon Keeler brought an action of ejectment in the United States circuit court for the district of Nebraska against Lamaster, claiming title to the land through the proceedings hereinbefore recited, and in the circuit court obtained judgment in his favor. The case was carried by writ of error to the supreme court of the United States, and the judgment below was reversed, the court holding that the provisions of the state statute of Nebraska, adopted in 1875, in regard to a stay of execution, including the mode of extending the judgment against the sureties on the bond, and issuing execution against their property in case of default, not being in force when section 916 of the Revised Statutes of the United States was enacted, and never having been adopted by a rule of the federal court, did not, therefore, authorize the act of the clerk of the circuit court in extending the judgment against the sureties on the bond, and, as a consequence, the issuance of execution and the levy on the property of the surety, and the sale thereof, were wholly void, and conveyed no title to Ewing, the purchaser, or to his grantee, Keeler. See Lamaster v. Keeler, 123 U.S. 376, 8 S.Ct. 197. No direct action, by appeal to the supreme court or otherwise, was taken in the case of Charles W. Seymore and William W. Wardell to vacate or reverse the order confirming the sale made by the marshal.

Upon the rendition of the judgment of the supreme court, holding that the sale and deed of the realty to Ewing were wholly void, and conveyed to him no title therein, Ewing made a settlement in full with his grantee, Keeler, repaying him the sum due him under the covenants of warranty contained in the deed to him. After the mandate from the supreme court was filed in the circuit court in the case of Lamaster v. Keeler, a motion was made in the original case of Charles W. Seymore and William W. Wardell v. William P. Young for an order directing the repayment into court of the sum of $1,485, being the amount paid out of the registry of the court to S.W. Little and D. B. Alexander; and the court, after reciting the facts at length, made an order directing that said sum should be paid into court by the parties executing the bond. It appearing to the court that Thomas Ewing was entitled, as a beneficiary, to enforce performance of the conditions of the bond hereinbefore set forth, the court made an order directing that said bond should be assigned and set over to said Ewing, which was accordingly done by the clerk of the court, under the seal thereof.

The parties to the bond having failed to pay into court the sum ordered, or any part thereof, thereupon, on the 19th of February, 1891, a petition was filed in said circuit court of the United States by Thomas Ewing, and against the principals and sureties in said bond, in which was recited at length the facts leading up to the execution of the bond, and the other facts herein stated, including the orders of the court made in the premises; and judgment was prayed against the parties to the bond in the sum of $1,485, interest and costs. To this petition the sureties on the bond, Walter J. Lamb and Lorenzo W. Billingsley, entered their appearance, and filed an answer thereto, wherein they denied the jurisdiction of the court pleaded the statute of limitations, averred that the bond by them executed was taken without authority of law, and was wholly void, and that, if valid, the condition thereof had not been broken, because the order of confirmation of sale had not been taken before the supreme court in any direct...