Nat'l Sur. Co v. Commonwealth Ex Rel. Westinghouse Electric & Mfg. Co

• Decision Date: 12 June 1919
• Citation: 99 S.E. 657
• Court: Virginia Supreme Court
• Parties: NATIONAL SURETY CO. et al. v. COMMONWEALTH ex rel. WESTINGHOUSE ELECTRIC & MFG. CO.

99 S.E. 657

NATIONAL SURETY CO. et al.

v.COMMONWEALTH ex rel. WESTINGHOUSE ELECTRIC & MFG. CO.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Sims, J., dissenting.

Error to Circuit Court, Loudoun County.

Action of debt by the Commonwealth, on the relation of the Westinghouse Electric & Manufacturing Company, against the National Surety Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Mason Manghum, of New Bedford, Mass., C. E. Nicol, of Alexandria, and J. J. Darlington, W. J. Lambert, and Frank J. Hogan, all of Washington, D. C, for plaintiffs in error.

Eppa Hunton, Jr., of Richmond, and E. E. Garrett, of Leesburg, for defendant in error.

WHITTLE, P. This case is the sequel to an action of assumpsit brought by the defendant in error, the Westinghouse Electric & Manufacturing Company, against the plaintiff in error the Washington & Old Dominion Railway, in the circuit court of Loudoun county. In that action the plaintiff recovered against the defendant a judgment for $81,652.19, with interest at the rate of 5 per cent, per annum from May 1, 1913, till paid, subject to a credit of $791.13, as of the last-named date, and costs. To that judgment a writ of error and supersedeas was granted by this court upon condition that the defendant execute bond with approved security in the penalty of $100,000, with condition according to law. Whereupon the defendant executed the required bond, with the plaintiff in error the National Surety Company a corporation, as its surety.

On March 15, 1917, this court entered the following order:

"This day came again the parties by counsel, and the court, having maturely considered the transcript of the record of the judgment aforesaid and arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in giving the instruction complained of upon the allowance of interest It is therefore considered that said judgment be reversed and annulled, the verdict of the jury set aside, and that the plaintiff in error recover of the defendant in error its costs by it expended in the prosecution of its writ of error and supersedeas aforesaid here. And this cause is remanded to the said circuit court for a new trial to be had in conformity with the views expressed in the said written opinion. If, however, the defendant in error, shall, within 90 days from the date hereof, elect in writing to relinquish the interest upon $81,652.19, the principal sum found by the jury, at 5 per cent, per annum from May 1, 1913, subject to a credit of $791.13 as of that date, to March 16, 1915, the date of the verdict (such relinquishment to be filed with the papers in the cause in the clerk's office of the circuit court of Loudoun county as a part of the record), then said judgment shall stand affirmed. But in the event of a new trial this provision is not to influence the jury in determining the question of interest."

The plaintiff, within 90 days from the day on which the foregoing order was entered, to wit, on May 9, 1917, availed itself of its right of election, as provided in the order, and on that day elected in writing to relinquish the stipulated interest, filing its remittitur in writing with the clerk of the circuit court, who filed the same with the papers in the cause.

The plaintiffs in error, the National Surety Company and Washington & Old Dominion Railway, denying liability on the supersedeas bond, this action of debt was instituted thereon against them by the defendant in error, the commonwealth of Virginia, suing at the relation and for the benefit of the Westinghouse Electric & Manufacturing Company. For convenience the defendant in error will hereinafter be called the plaintiff and the plaintiffs in error the defendants.

The defendants interposed a demurrer to the declaration and pleas of nil debet and conditions performed; and neither party requiring a jury, and all matters of law and fact having been submitted to the court, the demurrer was overruled, and the judgment under review pronounced in favor of the plaintiff against the defendants.

There is no ambiguity about the issue in this case. The order of this court of March 15, 1917, in the original case, was in terms set out in the declaration in this case, and the decision overruling the demurrer to the declaration is controlling. If the mandate of this court of March 15, 1917, affirmed the original judgment in behalf of the plaintiff against the defendant the Washington & Old Dominion Railway, according to the true intent and meaning of the condition of the supersedeas bond, then the demurrer to the declaration was rightly overruled, and the defendants have not performed and satisfied the obligation of the bond, and are liable. If, on the other hand, the order of this court in intendment and result amounts to a reversal of the original judgment, then, in that event, the bond has been satisfied, and the obligors therein are discharged. The condition of the bond is:

"To perform and satisfy the judgment * * * in case the said judgment be affirmed, or * * * the writ of error, or supersedeas, be dismissed, and also to pay all damages, costs, and fees which may be awarded against or in curred by * * * the petitioners in the appellate court, and all actual damages incurred in consequence of the supersedeas."

The question for our determination is within narrow limits and involves the construction of our own statutes and procedure. In such case little is to be gained by traveling beyond our borders to consult irreconcilable decisions of doubtful relevancy.

It seems to us that the clue to the correct solution of the question is found in the opening words of section 3485 of the Code (title, "Decision of Appellate Court"):

"The appellate court shall affirm the judgment, decree, or order if there be no error therein, and reverse the same, in whole or in part, if erroneous, and enter sv, ch judgment, decree, or order as the court whose error is sought to be corrected ought to have entered." (Italics ours.)

In other words, the statute in terms authorizes a partial reversal, and the entry by the appellate court of a judgment, the effect of which must be to affirm in part and reverse in part the original judgment. It must follow that to the extent to which the judgment is affirmed, it is still valid and binding upon the original judgment debtor, and also upon the sureties in the supersedeas bond, who will be held to have entered into their contract with knowledge that their liability under it was to be controlled by the provisions of section 3485. The bond is one of indemnity, the object of which is to secure to a successful litigant the ultimate fruits of his recovery, in whole or in part, and to insure him against loss from the possible insolvency of his debtor, or from other cause, pending the appeal. It would, indeed, seem anomalous to hold the sureties bound for the entire judgment in the event of an absolute affirmance, but not for a lesser sum in ease of a partial affirmance in conformity to the statute, on the supposition that the latter constitutes a new and different judgment. It is in no correct sense a new judgment, but an amendment of the old judgment, with the erroneous part of it expunged, made in contemplation of the statute and in obedience to its mandate. It does not nullify the old judgment, but amends it, and as amended affirms it. The course of decision of this court has for more than a century so construed statutes of this state substantially similar to the present statute. The cases of Williams v. Howard, 3 Munf. (17 Va.) 277, decided in 1812; Gibson v. Governor, 11 Leigh (38 Va.) 600; Lewis v. Arnold, 13 Grat. (54 Va.) 454; Buena Vista v. McCandlish, 92 Va. 297, 23 S. E. 781; Worrell v. Kinnear Mfg. Co., 103 Va. 719, 49 S. E. 988, 2 Ann. Cas. 997; Moreland v. Moreland, 108 Va. 107, 60 S. E. 730; Aultman v. Gay, 108 Va. 647, 62 S. E. 946; McIntyre v. Smyth, 108 Va. 751, 62 S. E. 930; Powers v. Hamilton, 117 Va. 810, 86 S. E. 98; Washing-ton & 0. D. Ry. v. Westinghouse Co., 120 Va. 620, 89 S. E. 131, 91 S. E. 646.

Judge Burks, in his admirable work on Pleading and Practice, p. 772, says with respect to "putting a party upon terms":

"A party may be in effect put on terms in the appellate court as well as in the trial court. When a party is put on terms in the appellate court because a judgment in his favor is excessive, it may reverse the judgment of the trial court and remand the cause, with direction to the trial court to put the successful party upon terms to release the excess, or else submit to a new trial, and if the release is made, to overrule the motion for a new trial and render judgment for the correct amount with interest and costs [citing Buena Vista Co. v. McCandlish, supra]; or, if the error be one of mere calculation, readily corrected from the record, or if the verdict and judgment of the trial court is excessive and the record affords plain and certain proof of the amount of the excess so that it may with safety be corrected, in either event the appellate court will amend and affirm the judgment of the trial court, and will not remand the case for such amendment [citing Aultman v. Gay, supra, and Mclntyre v. Smyth, supra; Code, § 3452; Ann. Code W. Va. 1906, § 4037; ante, section 373]."

We are persuaded that the procedure adopted by this court in the case of Washington & Old Dom. Ry. v. Westinghouse supra, is so thoroughly established by direct and controlling decisions and has been so long acquiesced in and acted upon as to bring it within the influence of the maxim of stare decisis.

So far as we are advised, in all these years the liability of sureties in appeal bonds upon these modified affirmances has not been drawn in question, and the present inquiry is res integra in this court. At all events, the research of the very able counsel who represent the plaintiffs in error has failed to disclose any pertinent...