Pacific Coast Cas. Co. v. Harvey
| Decision Date | 06 May 1918 |
| Docket Number | 3069. |
| Parties | PACIFIC COAST CASUALTY CO. v. HARVEY. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bert Schlesinger, A. E. Shaw. and Edwin H. Williams, all of San Francisco, Cal., for appellant and plaintiff in error.
Charles S. Wheeler and John F. Bowie. both of San Francisco, Cal (Nathan Moran, of San Francisco, Cal.,of counsel), for appellee and defendant in error.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
Appellant is a surety on a supersedeas bond given in a proceeding wherein one Stowe, trustee in bankruptcy of the estate of J D. Harvey, made a claim against Mrs. S. G. Harvey. The trustee obtained judgment in the District Court, but upon appeal this court reversed the decree and ordered the cause dismissed, with costs, and that Mrs. Harvey have execution therefor. Harvey v. Stowe, 219 F. 17, 134 C.C.A 635. The clerk of the District Court held in his custody 'in part lieu of a supersedeas bond on appeal' from the decree of the District Court, certain shares of corporate stock which were the subject-matter of the litigation. The trustee then appealed to the Supreme Court of the United States, and on appeal from the decision of this court the Pacific Coast Casualty Company, appellant, gave a bond unto S. G. Harvey in the sum of $5,000, the condition of which was as follows:
' * * * That if the said appellant shall prosecute said appeal to effect and answer all damages and costs if he fail to make said appeal good, then the above obligation shall be void; otherwise, to remain in full force and effect.'
In the order allowing appeal to the Supreme Court it was ordered that the appeal should operate as a supersedeas upon the petitioner filing a bond in the sum of $5,000. The Supreme Court affirmed the judgment of this court (Stowe v. Harvey, 241 U.S. 199, 36 Sup.Ct. 541, 60 L.Ed. 953), and sent its mandate direct to the District Court for the Northern District of California, and ordered that the action of Stowe, trustee in bankruptcy, against Mrs. S. G. Harvey, be dismissed. Thereupon such action was dismissed, with costs to Mrs. S. G. Harvey. Thereafter Mrs. S. G. Harvey filed her bill of costs, all of which had been incurred prior to the giving of the bond. The District Court allowed her claim, with interest, against the estate in the receiver's hands, and the receiver of the Casualty Company seeks review.
The errors specified are: (1) That under section 25c of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 553 (Comp. St. 1916, Sec. 9609)) a trustee in bankruptcy is not required to give bond when he takes appeal or sues out writ of error, and that the order requiring the trustee to give bond 'as a condition' to allowing his appeal was in contradiction of the statute; and (2) that, when appeal from the decision of the Circuit Court of Appeals was taken by the trustee, there was no judgment in existence against him upon which an execution could issue, in that the judgment of the District Court was in his favor, and was not reversed until after the whole case had been heard and decided by the Supreme Court, and that as a consequence the bond given could not operate as a supersedeas, as there was no possibility of a writ of execution issuing against the trustee until after his appeal had been finally determined.
Appellant evidently misunderstands the situation when he assumes that the court required the trustee in bankruptcy to give bond as a condition to allowing his appeal. The court allowed the appeal as prayed, and also ordered:
'That this shall operate as a supersedeas on the petitioner filing a bond in the sum of $5,000.'
It is true that under section 25c of the Bankruptcy Act the trustee was not required to give bond when he took the appeal or sued out writ of error; but a supersedeas pending the appeal, though an auxiliary, was a separate matter. The appellate court could undoubtedly have reviewed the proceedings, even though appellant had failed to give any bond to supersede the proceedings on a judgment or decree entered against him. Logan v. Goodwin, 104 F. 494, 43 C.C.A. 658. Revised Statutes, Sec. 1000 (Comp. St. 1916, Sec. 1660), is the general provision on appeal, for costs and damages, or for costs only, according to whether or not supersedeas is obtained; but we do not think that section 25c, relieving a trustee in bankruptcy from giving bond on appeal or writ of error, relieves him from the obligation to give such a bond as is required (Revised Statutes, Secs. 1000, 1007 (Comp. St. 1916, Secs. 1660, 1666)) of any litigant where supersedeas is desired. In re Barrett (D.C.) 132 F. 362. But the order of the District Judge who allowed the appeal imposed no condition with respect to the appeal. The trustee, however, was given the right to have a supersedeas, if he chose to avail himself of such right, by giving the bond specified. McCourt v. Singers-Bigger, 150 F. 102, 80 C.C.A. 56.
The appellant argues that there could be no supersedeas, because there was no judgment in existence upon which execution could be issued. But the decree of this court awarded costs and execution, and as a consequence of the stay of proceedings obtained by the bond on appeal to the Supreme Court appellee was kept out of possession of her certificates of stock until final order of dismissal, and also was prevented from having a dismissal of the suit against her, and from collection of accrued costs awarded to her by the decree of this court. In Goddard v. Ordway, 94 U.S. 672, 24 L.Ed. 237, suit in the nature of trustee process was brought against a receiver, who had in his hands certain bonds when the lower court of the District of Columbia ordered the bill dismissed. Upon appeal to the United States Supreme Court, supersedeas bond was given. The appellant moved the Supreme Court for special writ of supersedeas; but the Supreme Court denied the motion, and said:
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