Morrison v. Fidelity & Deposit Co. of Maryland
| Citation | 97 Wash. 623,166 P. 1122 |
| Decision Date | 14 August 1917 |
| Docket Number | 14070. |
| Court | United States State Supreme Court of Washington |
| Parties | MORRISON et ux. v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.
Action by Peter Morrison and wife against the Fidelity & Deposit Company of Maryland. From a judgment for plaintiffs defendant appeals. Affirmed.
Danson Williams & Danson and Skuse & Morrill, all of Spokane, for appellant.
Voorhees & Canfield, of Spokane, for respondents.
On the 13th day of April, 1914, respondents brought several actions for the recovery of the possession of several parcels of real estate situate in Spokane county. The several defendants who had forcibly entered filed redelivery bonds, and kept possession pending a trial in the superior court and an appeal to this court, where in a test case ( Morrison v. Gunning, 91 Wash. 693, 157 P. 1199) respondents prevailed. No supersedeas bond was filed on appeal. The opinion of this court was filed on May 18, 1916. A petition for rehearing was denied on July 7, 1916. On December 5, 1916, and more than 60 days thereafter, a writ of error to the Supreme Court of the United States was sued out. The case has not yet been determined in that court. To the suit of respondents on the bonds, the surety, appellant here answered, setting up the same defenses urged by its several principals in the forcible entry and detainer actions, which, briefly stated, are that the land was public land of the United States and subject to entry, and that the several defendants are qualified as homesteaders under the homestead law. The court below made findings and conclusions denying the legal affect of appellant's pleas, and entered judgment in favor of respondents.
The briefs discuss the merit of the case, but the engagement of the appellant is such that it is barred to raise any questions of fact or law which were considered in the case of Morrison v. Gunning.
The condition of the bond is as follows:
'Now, therefore, if the said above bounden H. J. Gunning and Nellie Gunning will pay to said Peterson Morrison and Agnes Morrison, plaintiffs in said action, such sum as they may recover for the use and occupation of said premises, or any rent found due together with all damages they, said plaintiffs, may sustain by reason of the defendants occupying or keeping the possession of said premises, and also all costs of said action, then these obligations to be null and void, otherwise to be and remain in full force and effect.'
The liability of the appellant to pay the judgment against the principal defendants is fixed, and cannot be now inquired into. Larson v. Deering, 166 P. 1119; Costello v. Bridges, 81 Wash. 192, 142 P. 687, L. R. A. 1915A, 853; Glover v. Fidelity & Deposit Co., 75 Wash. 606, 135 P. 486; Lowman v. West, 18 Wash. 233, 51 P. 373; Hall & Paulson Furniture Co. v. Schmidt, 7 Wash. 606, 35 P. 424.
Upon oral argument appellant makes the further contention, suggested but not argued in the briefs heretofore filed, that under our Constitution and the statutes of this state, as well as the federal practice, the case now on writ of error to the United States Supreme Court is still pending, and that a liability will not be enforced either by execution against the principals or by suit against appellant until the case is disposed of by the Supreme Court, and that the judgment roll in the former case cannot be introduced in this case.
It is expressly provided that an appeal will not stay proceedings in forcible entry and detainer cases unless a bond is given to pay all rent and other damages pending the appeal. Rem. Code, § 832. The appeal is allowed as in other actions. A supersedeas in other civil actions may be had by following the directions outlined in Rem. Code, §§ 1722, 1726, and 1727.
If execution will lie against the principal, suit will lie on...
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