Osborn v. Riley

Decision Date26 March 1976
Citation331 So.2d 268
PartiesC. O. OSBORN et al. v. E. W. RILEY et al. SC 1171.
CourtAlabama Supreme Court

Charles Cleveland and Douglas P. Corretti, Birmingham, for appellants.

Whitmire, Morton & Coleman, Birmingham, Prentiss M. Rainey, Springville, Nash, NeSmith & Walker, Oneonta, for appellees.


Appellants are Aetna Casualty and Surety Company and the executors of the will of C. O. Osborn. They appeal from a judgment on a supersedeas bond rendered by the Circuit Court of St. Clair County in favor of appellees, the Rileys. That judgment, rendered on January 27, 1975, ordered Osborn, as the principal, and Aetna, as the surety, to pay the Rileys the sum of $20,000 plus court costs.

The litigation in this cause began in the spring of 1973 when the Rileys brought suit against C. O. Osborn, James G. Clark, Jr., and Ray Wyatt seeking to set aside, because of undue influence, a deed by which the Rileys had conveyed a large tract of land to Osborn. On May 7, 1973, the circuit court declared the deed to be null and void on the basis of the court's finding of undue influence.

On May 21, 1973, Osborn, intending to appeal, filed with the circuit court an ex parte application to fix the amount of a supersedeas bond. That same day, the court granted the application, setting the supersedeas bond at $5,000 conditioned on the requirement that Osborn pay any judgment the appellate court might render as well as 'such costs and damages as any party may sustain by reason of the wrongful appeal and suspension of the decrees.' Osborn obtained a $5,000 supersedeas bond from Aetna Casualty and Surety Company, which was approved by the Register and filed that same day.

On May 28, 1973, after receipt of the decree fixing the supersedeas bond at $5,000, the Rileys filed a motion to increase the amount of the supersedeas bond based on their contention that $5,000 was inadequate to supersede the decree. This motion was presented to the trial court on May 28, 1973, and set for hearing on June 6, 1973. A copy of the motion and order was served on appellant Osborn's attorneys.

On June 6, 1973, the motion came on to be heard with the attorneys for the parties present. After considering the matter, the court modified its earlier decree and increased the amount of the supersedeas bond from $5,000 to $20,000. No objection was made thereto by appellant Osborn, but he made the bond with Aetna as surety.

On appeal, this Court affirmed the circuit court's judgemtn. (See Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974).)

Osborn's appeal having been unsuccessful, the Rileys then filed suit on Osborn's bond with Aetna, demanding payment of damages in the amount of $20,000. The Rileys contended that Osborn's failure to successfully prosecute his appeal and his failure to pay all of the Rileys' costs and damages constituted a breach of the condition of the supersedeas bond. Osborn defended on the grounds that the Rileys did not prove that they were damaged by virtue of Osborn's appeal or that the appeal was wrongful. The circuit court rendered judgment in favor of the Rileys in the amount of $20,000 plus costs. That judgment is now challenged by Aetna and by the executors of Osborn's estate (Osborn being deceased).

First, appellants claim that the circuit court's order of June 26, 1973, which increased the supersedeas bond from $5,000 to $20,000, is void for lack of jurisdiction. Appellants rely on Tit. 7, § 766, Code of Alabama of 1940 (Recomp.1958), which provides that an appeal 'shall be shown . . . (c) By giving and having approved a supersedeas bond . . ..' Appellants contend that the filing of the first supersedeas bond on May 21, 1973, perfected their appeal to this Court, thereby invoking our jurisdiction and divesting the trial court of any further jurisdiction in the premises.

To support this contention, appellants cite a line of cases which hold that the filing and approval by the clerk of a supersedeas bond is sufficient to perfect an appeal and to transfer jurisdiction to the appellate court. But, the primary issue in all the cases cited by appellants in the question of the trial court's right to rule on a motion for new trial after jurisdiction over the cause has been transferred to an appellate court by the filing of a supersedeas bond. The unanimous holdings of these cases is that, under such circumstances, the lower court's jurisdiction to consider a motion for new trial is suspended. See: Johnsey-Reed Bros. Coal Co. v. Sanders, 275 Ala. 339, 154 So.2d 923 (1963); MacMahon v. Dozier, 237 Ala. 574, 187 So. 710 (1939); Lewis v. Martin, 210 Ala. 401, 98 So. 635 (1923); Sharp v. Edwards, 203 Ala. 205, 82 So. 455 (1919).

However, this authority is not controlling under the instant facts, since no motion for new trial is involved here. Moreover, other cases included in that same line of authority do not support appellants' application of the rule to these facts. In Barran v. Roden, 263 Ala. 305, 307, 82 So.2d 398, 399 (1955), this Court set out a limitation on the rule that, after an appeal is taken, the trial court cannot rule on any matter involving the appeal:

'. . . The rule is stated to be that after an appeal is taken, the lower court 'may proceed in matters which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.' This is a limitation on the rule that after an appeal is taken the trial court cannot, pending that appeal, pass upon any matter involved on the appeal. . . .

'As to those matters which are entirely collateral to the questions involved on appeal, the court and parties are free to proceed notwithstanding the appeal if taken, or without affecting the right to appeal if not then taken. 4 C.J.S., Appeal and Error, § 212e, p. 401.'

Accord: Francis v. Scott, 260 Ala. 590, 72 So.2d 93 (1954); Ex parte Taylor, 251 Ala. 387, 37 So.2d 656 (1948); Ex parte City Council of Montgomery, 114 Ala. 115, 14 So. 365 (1896).

Clearly, the filing of the first supersedeas bond on May 21, 1973, did constitute the taking of an appeal as of that date under the authority of Tit. 7, § 766. Consequently, all jurisdiction over those matters adjudicated, and from which the appeal was taken, was transferred to the appellate court on May 21, 1973. However, as has been established in cases such as Barran v. Roden, it is equally clear that the trial court retains its power to pass on matters collateral to the matter appealed. Some guidance for the determination of what constitutes a collateral matter for these purposes may be gleaned from this Court's opinion in Allen v. Allen, 80 Ala. 154 (1885), in which the following language appears:

'We do not doubt that, when a decree has been rendered by a court of equity and an appeal has been prosecuted to this court from such decree, a chancellor would no longer have such jurisdiction of the cause as would enable him to render any further decree affecting the rights and equities of the parties in the same cause during the pendency of the appeal.

'The present motion, however, is a separate and distinct proceeding from the chancery suit which culminated in the decree from which the appeal in question was taken. It is based upon grounds which have nothing to do with the equities involved in and settled by that decree, and which have even originated subsequent to its rendition. The purpose of the motion is not to raise any question going behind the decree or concluded by it, but only to prevent any abuse of the process of the court by the agency of which it is sought to enforce the execution of the decree. It is manifest that whatever course may be taken by the appellate court as to the decree appealed from, whether it be affirmed or refused, the questions arising from this motion would neither be discussed nor determined.'

80 Ala. at 155--56.

Much like the motion in controversy in the Allen case, the Rileys' motion for an additional supersedeas bond is part of a proceeding that is separate and distinct from the decree appealed from. The question presented by the Rileys' motion, that is, whether the original $5,000 supersedeas bond adequately protected the Rileys' interest in the court's order entered in their favor, does not involve the rights and equities relative to the question of whether their deed should have been set aside. The Rileys' motion does not raise any question going behind the decree appealed from, nor does it raise any question decided by that decree. In short, the Rileys' motion presented a question which is clearly collateral to the questions raised by Osborn's appeal of the court order setting aside the deed.

Moreover, in Ex parte Farrell, 196 Ala. 434, 71 So. 462 (1916), this Court quoted with approval the following language from the Virginia case of Cralle v. Cralle, 81 Va. 773 (1886):

'. . . the effect of an appeal, when fully perfected by the execution of the proper supersedeas bond, is to deprive the subordinate court of all power over the parties and subject-matter of controversy . . .; and the only orders, therefore, which that court can rightfully make are such as are needful for the preservation of the res and the rights of the parties pending the appeal.'

Id., 196 Ala. at 436--437, 71 So. at 463. So, it is that the Rileys' motion for additional bond involved a matter necessary for the full protection of their rights pending Osborn's appeal, hence the language approved in Farrell is applicable under the facts of the instant case.

Tit. 7, § 794, Code of Alabama of 1940 (Recomp.1958), makes the amount of a supersedeas bond, under circumstances such as those of the instant case, a matter within the trial court's discretion. In Ex parte Edwards, 20 Ala.App. 567, 104 So. 53 (1925), the Court of Appeals held:

'. . . the law does not...

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