National Sur. Co. v. Schafer

• Decision Date: 06 April 1914
• Citation: 57 Colo. 56,140 P. 199
• Parties: NATIONAL SURETY CO. v. SCHAFER et al.
• Court: Colorado Supreme Court

140 P. 199

57 Colo. 56

NATIONAL SURETY CO. v. SCHAFER et al.

Supreme Court of Colorado

April 6, 1914

Error to District Court, Lincoln County; J. W. Sheafor, Judge.

Proceeding by George Schafer and others against the National Surety Company. Judgment for plaintiffs, and defendant brings error. Reversed.

O'Donnell, Graham & O'Donnell, of Denver for plaintiff in error.

Henry Trowbridge, of Denver, for defendants in error.

SCOTT J.

The defendants in error, on the 21st day of February, 1911 obtained a judgment in the district court of Lincoln county against the Denver Horse Importing Company in the sum of $4,400, and for costs of suit. From this judgment an appeal was prayed and allowed to this court. The appeal bond required by order of the district court was filed in that court on the 27th day of February, 1911, with the plaintiff in error, the National Surety Company, as surety. June 3 1911, upon a short transcript, the appeal was dismissed, and the remittitur issued. On the 8th day of August, 1911, the record was entered here as upon error, and a supersedeas allowed. After this, and after the remittitur had been lodged in the district court, and on the 14th day of October, 1911, upon motion of the defendants in error here, the district court rendered judgment upon the appeal bond in the sum of $4,780.75, being the amount of the said judgment theretofore rendered, together with interest and costs. The plaintiff in error was duly notified of such motion, and was present by counsel in court, and objected to the rendition of such judgment. The objection urged was that, under the state of facts presented, the court was without jurisdiction to enter the judgment at that time. Section 397 of the Civil Code provides: 'The dismissal of an appeal may, by order of the court, be made without prejudice to another appeal or writ of error; but unless another appeal or supersedeas be taken or allowed within thirty days after such dismissal, the dismissal of an appeal or writ of error shall operate as an affirmance of the judgment of the trial court, so as to make the sureties upon the undertaking given by the appellant or plaintiff in error, liable on such undertaking.'

By the act of 1907 section 388 of the Civil Code (now section 422 of Code of 1908) was amended so as to include the following provision: 'If the appeal be from a judgment or decree directing the payment of money, the appeal bond shall also provide that if the appellant does not make payment of said judgment or decree and the interest and costs within thirty days after the filing of the remittitur from the Supreme Court in the court from which the appeal is taken, on motion of the obligee in said bond, judgment shall be entered in the court from which the appeal is taken, in his favor, against the sureties for such amount as may be awarded against the appellant on appeal. No execution shall issue, on such judgment against the sureties, however, until a writ of scire facias shall issue and be served on such sureties, in the manner in which summons may be served, requiring them to show cause before the court, by a day to be therein named, not less than five days after the service of said writ, why execution should not be issued against them, and no appeal by said sureties from the judgment of the court thereon shall lie.'

Section 401 of the Civil Code provides that a writ of error shall not be brought after the expiration of three years from the rendition of the judgment complained of. Section 402 provides that no writ of error shall operate as a supersedeas, except, upon order of the court or judge, the writ be made a supersedeas, nor until a bond be filed as in case of appeals. These sections of the statute were in effect at the time, and are controlling in this case. The contention of the plaintiff in error is, in substance, that section 397, when construed in connection with other sections of the Code related thereto, must be construed as intending that, when an appeal has been dismissed and a new obligation for the judgment entered into upon order granting a supersedeas within 30 days after the dismissal, the surety upon the new bond thus given shall be liable; but that, if more than 30 days elapse, as in this case, between the time of dismissal and that of giving the supersedeas bond, then the appeal bond shall remain effective, and, in such event, the holder of the judgment can, if the judgment be finally affirmed, have recourse upon either or both sets of sureties, being restricted to one satisfaction of the judgment. That is to say, that, while the defendant in error is liable upon its appeal bond, such liability does not mature until the judgment is affirmed, admitting, however, that if the writ of error had not been made a supersedeas, the liability upon the appeal bond would immediately accrue.

On the other hand, as we understand it, the defendants in error contend that, inasmuch as the supersedeas was not allowed until more than 30 days had elapsed from the date of dismissal, the dismissal acted as an affirmance of the judgment, and that they are entitled to immediate judgment on the bond, and to execution thereon, regardless of the fate of the judgment in this court. This was the view of the district court. The question here presented has not been determined by this court. All cases involving the rights of judgment creditors under section 397 of the Code of Civil Procedure, in so far as hitherto determined, have involved an appeal bond wherein the appeal had for some reason been dismissed, and wherein this court has not again assumed jurisdiction by a new appeal, or by writ of error, either within or after 30 days from the date of dismissal. In the case at bar, after the appeal had been dismissed, this court had again assumed jurisdiction by the issuance of its writ of error, and had superseded the judgment for which the appeal bond had been given, though not within the 30 days provided by the statute. It must be conceded that the statutes allowing writs of error to be brought within three years from the date of judgment, the causing of such writs to act as supersedeas, together with the power given to this court to re-enter dismissed appeal cases as on error, are all effective in this particular case, and must be construed together and in connection with the other statutes under consideration. The power of the court to suspend the execution of the original judgment, by granting the supersedeas in this case, cannot be questioned, and that case is before us for review and final determination, as in any other case on error wherein the judgment has been superseded. It cannot be said that this power and authority was intended to be limited by the provisions of section 397 of the Civil Code. Then the judgment, to satisfy which the appeal bond involved in this action was given, is suspended by this court pending review and determination, and as effectively so as if the former appeal had never been taken.

It is a rule of statutory construction, approved by the appellate courts of this state, that, where there is ground for dispute as to the intent of the Legislature and meaning of the statutes, we should consider the results of any such construction, and it is always presumed that the Legislature, in the enactment of a statute, seeks to obtain reasonable results and practical objects; further, that it is always true that a thing apparently within the letter of the act is not within the statute, unless it be likewise within the evident intention of the Legislature; that an intention must always be deduced from a construction of the whole and every part of the statute.

The occasion and necessity of the law and the mischief to be remedied and the object in view are always to be taken into account in determining the intention. It cannot be assumed that the Legislature intended to impose farcical proceedings upon this court, or upon litigants, particularly where these may result in great injustice; for this might well be the result in ...