Lloyd v. Stewart, 7 Div. 144

• Decision Date: 02 April 1953
• Docket Number: 7 Div. 144
• Citation: 64 So.2d 884,258 Ala. 627
• Parties: LLOYD v. STEWART.
• Court: Alabama Supreme Court

Page 884

64 So.2d 884

258 Ala. 627

LLOYD v. STEWART.

7 Div. 144.

Supreme Court of Alabama.

April 2, 1953.

Merrill, Merrill, Vardaman & Matthews, Anniston, for appellant.

Young & Young, Anniston, for appellee.

PER CURIAM.

A majority of the Court, consisting of Justices LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, are of the opinion that this application for rehearing should be overruled.

They point out that section 814, Title 7, Code, is controlling and that it does not authorize a personal judgment on a supersedeas appeal bond when the judgment is affirmed, so that it will be against the principal and sureties on such an appeal bond for the principal and interest of a debt or damages and ten per cent penalty thereon, unless there was rendered in the trial court a personal judgment against appellant for the debt or damages in a specified amount of money. They think that the judgment or decree of the trial court set out in the preceding opinion is not one for money. It only ascertains an amount which appellant is authorized to pay within twenty days, if he sees fit to do so. No execution could issue against him before or after the twenty days specified. If he fails to pay it, appellee is given the privilege of removing a certain item of plate glass there described. It was held in the case of Hughes v. Hatchett & Trimble, 55 Ala. 539, that such a judgment or decree is not one for money as contemplated by section 814, supra. See, also, Naylor & Norlin v. Lewiston & Southeastern Electric Ry. Co., 14 Idaho 722, 95 P. 827. They do not think that section 814, supra, authorizes this Court on affirmance to render a personal judgment for money when the trial court made no such judgment.

The majority of the Court think that appellant and the sureties on such a bond are not estopped in this summary proceeding to contend that there was no such judgment because of the recital in the bond of its existence. The court is not considering available defenses to a common law action on the bond. But a summary judgment against the bondsmen cannot be rendered unless the facts exist which the statute prescribes shall exist to support such a judgment. Those facts are such as are to be shown by the record. If the record does not show their existence, they cannot be supplied by estoppel to satisfy the statute.

The affirmance is merely to give effect by the judgment of this Court to the decree of the trial court, so as to allow appellant twenty days from the date of this judgment within which he (appellant) may pay the amount specified in the decree of the trial court. Upon his failure to do so that court is given authority to proceed to the enforcement of its decree.

Application for rehearing overruled.

BROWN, J., dissenting.

LIVINGSTON, C. J., not sitting.

BROWN, Justice (dissenting).

On the first appeal reported as Stewart v. Lloyd, 254 Ala. 465, 48 So.2d 788, the decree of the circuit court in equity was reversed and the cause remanded for further proceedings. Following the reversal the court, after hearing further testimony given ore tenus, granted relief to the complainant, observing:

'The court was of opinion of the former trial that the glass installed by the complainant could not be removed without substantial damage to the building. That when Megginson (Lloyd's lessee) moved into the building the front was equipped with folding doors and the court thought at that time the complainant had, as a part of his contract, made the change to the front of the building. The testimony taken on April 10, 1951, showed that the only work done by the complainant, Stewart, was the actual installation of the glass, and glass can be removed from the building, and after such removal the building will be in the condition it was at the time Stewart began his work.

'It is therefore ordered, adjudged and decreed by the Court that the Complainant, H. A. Stewart, has a lien on the plate glass installed in the front of that certain building located at 1314 Noble Street, Anniston, Alabama, more particularly described as follows:

'That certain store building located on a parcel of land beginning on the west line of Noble Street, in the City of Anniston, Alabama, 190 feet south of the southwest intersection of 14th Street and Noble Street; thence south 40 feet; thence west 195 feet to an alley, running parallel with said Noble Street; thence north along the east side of said alley 40 feet; thence east 195 feet to the point of beginning. in the sum of $545.88.

'The Respondent, E. C. Lloyd, shall have 20 days from the date of this decree within which to pay the amount of said lien and costs of this case; provided further that if the said respondent, E. C. Lloyd, fails to pay the said lien and costs as above provided within 20 days from the date of this decree, that the Complainant, H. A. Stewart, shall have the right to go on to the premises of the building heretofore described and to remove the plate glass which he installed in the front of the building heretofore described in this decree, provided further that the said removal shall be accomplished within 30 days after the failure or refusal of the said E. C. Lloyd to pay the lien and costs heretofore mentioned.

'The costs of this case are hereby taxed against the Respondent, E. C. Lloyd, for which let execution issue.'

From said decree the respondent on the 29th of May, 1952, appealed to this court and executed, with sureties, a supersedeas bond, couched in the following words:

'Know All Men By These Presents, that we E. C. Lloyd and sureties are held and firmly bound unto H. A. Stewart in the just and full sum of Twelve Hundred and no/100 Dollars, for the payment of which we jointly and severally bind ourselves, our heirs, executors or administrators, firmly by these presents. The right of Exemption under the Constitution and Laws of Alabama is hereby waived.

'Sealed with our seals and dated this 6th day of June, 1951

'The Condition of the Above Obligation Is Scuh, that whereas, the above bound has this day applied for and obtained an appeal returnable to the Supreme Court of Alabama, to supersede and reverse a judgment recovered by the said H. A. Stewart against the said E. C. Lloyd on the 23rd of May, 1951, in the Circuit Court of Calhoun County, Alabama, in Equity, for the sum of Five Hundred Forty-five and 88/100 Dollars, besides costs.

'Now, if the said E. C. Lloyd shall prosecute to the effect his said suit in the Supreme Court of Alabama, and shall pay and satisfy such judgment as the Supreme Court of Alabama, shall render in this case, then this obligation to be void, otherwise to remain in full force and effect.'

On May 15, 1952, the decree of the lower court was affirmed as a delay appeal under the provisions of Rule 18 of Supreme Court Practice. Code 1940, Tit. 7 Appendix. 60 So.2d 911. Thereafter on May 20, 1952, on motion of appellant the judgment of affirmance was set aside and appellant was, upon payment of the costs of appeal, permitted to file the record which had not been filed theretofore and to submit the cause on assignments of error written on the record. This order was made on May 30, 1952.

On June 19, 1952, the decree of the circuit court, in equity, was affirmed, establishing and declaring a mechanic's lien in favor of complainant on the improvements made on the respondent's building and ascertaining the value of the improvements to be $545.88, allowing respondent 20 days within which to pay said sum of money and relieve said improvement of said lien and failing therein authorizing the complainant to repossess said improvement and remove the same from said building. It was from that part of the decree the respondent Lloyd had appealed and for that purpose executed the supersedeas bond, as he had the right to do under § 794, Title 7, Code of 1940. On the last mentioned affirmance this court rendered a judgment against the appellant and the sureties on the supersedeas bond for the sum of money appellant was authorized to pay to relieve said improvement from the lien, with interest, costs and ten percent damages.

On July 2, 1952, within 15 days from the rendition of the judgment of affirmance, appellant filed application for rehearing and on July 4, 1952, filed a motion to amend the decree, which was resisted by the appellee.

On November 6, 1952, appellant's motion for rehearing was overruled and motion to amend granted, relieving the sureties on the supersedeas bond from liability for the money which appellant was authorized to pay to relieve and discharge the lien and the 10% penalty, but taxing the costs against the principal and sureties, leaving the decree affirmed against the appellant Lloyd.

On November 12, 1952, during the same term, appellee Stewart filed a motion to 'amend, modify and clarify the order of November 6, 1952,' made at appellant's instance.

In our opinion of June 19, 1952, we observed :

'We have re-examined the testimony taken on both trials in open court and find the same in sharp conflict on the several controversial points:--(1) Whether or not the plate glass front was installed by the original contractor under the contract with Lloyd's lessee before the written lease was signed and became effective. (2) Whether or not Lloyd, the owner, knew of the proposed improvement and in fact approved and authorized the same. (3) Whether or not the plate glass can be removed without damage to the building. However, the weight of the evidence tends to sustain the conclusion stated in the decree of the circuit court, that said plate glass can be removed without detriment to the building, except the absence of the glass from the setting.

'The evidence is without dispute that before the bill was filed the complainant proposed a settlement to Lloyd and offered to remove the glass and square the deal. Mr. Lloyd refused to allow him to do so.

'After due consideration we are of opinion that the decree is well sustained by the...