Pierce v. National Bank of Commerce in St. Louis

• Decision Date: 30 June 1922
• Docket Number: 6013.
• Citation: 282 F. 100
• Parties: PIERCE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F. 100

PIERCE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS.

No. 6013.

United States Court of Appeals, Eighth Circuit.

June 30, 1922

Henry S. Priest, of St. Louis, Mo. (Boyle & Priest. Judson, Green &amp Henry, and Fordyce, Holliday & White, all of St. Louis, Mo on the brief), for appellant.

George L. Edwards, of St. Louis, Mo. (Edward J. White, of St. Louis Mo., on the brief), for appellee.

See, also, 268 F. 487, 272 F. 1023.

This is an appeal under section 129 of the Judicial Code (Comp. St. Sec. 1121) from an order denying an interlocutory injunction and striking our certain parts of the cross-complaint of appellant's answer. For convenience, Mr. Pierce will be referred to as the appellant, and the appellee as the bank. The facts, so far as it is necessary to determine the issues, are:

The appellant had instituted an action to enjoin a judgment against him by the circuit court of St. Louis, affirmed by the Supreme Court of the state of Missouri, in favor of the bank, 219 S.W. 578. The trial court sustained a motion to dismiss. Upon appeal appellant asked this court for an injunction to restrain the collection of the judgment, pending the appeal. This court ordered a temporary injunction upon the following conditions, that:

'First. It is ordered that, on condition that the appellant give a bond with surety or sureties, approved by one of the judges of this court, in the sum of $5,000, conditioned to pay any costs and damages that may result from the restraining order and injunction contained in this first paragraph of this order, the appellee, the National Bank of Commerce in St. Louis, its assigns, its attorneys, officers, and agents, and each of them, is restrained and enjoined, pending this appeal and decision thereon, and the further order of this court, from applying for or suing out of the St. Louis circuit court or the Missouri Supreme Court within the next sixty (60) days any execution in the case of the National Bank of Commerce in St. Louis, plaintiff, against Henry Clay Pierce, defendant, originally brought in the circuit court of the city of St. Louis, Mo., and affirmed in the Supreme Court of Missouri, and numbered 20148, and that the said bank, its assigns, its attorneys, officers, and agents, are enjoined and restrained, pending this appeal and decision thereon, from filing within the next sixty (60) days suit against the Maryland Casualty Company, the surety on the appeal bond in said case, and from making within said sixty (60) days an application for the cancellation of the license of said Casualty Company to do business in the state of Missouri on account of its failure to pay said judgment.

'Second. It is further ordered that, on condition that the appellant, Henry Clay Pierce, pays within sixty (60) days from this date to the National Bank of Commerce in St. Louis aforesaid the amounts in excess of $300,000 owing to the bank on the judgments against him in the circuit court in the city of St. Louis, and in the Missouri Supreme Court in the case of the National Bank of Commerce in St. Louis, plaintiff, against Henry Clay Pierce, defendant, aforesaid, and that he gives a bond to said Bank of Commerce in the sum of $350,000, with sureties approved by one of the judges of this court, so conditioned as to secure the payment of the remainder of said judgments and interest, or such parts thereof as shall be adjudged to be paid by the decree of the court below or of the appellate court which finally disposes of this case, and all damages and costs in this case, the National Bank of Commerce, its assigns, its attorneys, officers, and agents, and each of them, is restrained and enjoined, pending the final disposition of this case or the further order of this court, from applying for or suing out of the St. Louis circuit court or the Missouri Supreme Court any execution in the case of the National Bank of Commerce in St. Louis, plaintiff, against Henry Clay Pierce, defendant, originally brought in the circuit court in the city of St. Louis, Mo., and affirmed in the Supreme Court of Missouri and numbered 20148, and that the said bank, its assigns, its attorneys, officers, and agents, and each of them, are enjoined and restrained, pending the final disposition of this case or the further order of this court, from filing suit against the Maryland Casualty Company, the surety, on the appeal bond in said case, and from making an application for the cancellation of the license of said Casualty Company to do business in the state of Missouri on account of its failure to pay said judgment.'

Pursuant to this order the appellant paid appellee the amount on said judgment in excess of $300,000. As it was also necessary for appellant to execute a bond for $350,000 as required by the order of the court, in order to make the injunction pendente lite effective, he represented to the bank that, if he gave that bond, it would then hold two bonds, upon which he would be required to pay large annual premiums, one to secure the payment of the balance due the bank upon the judgment, the bond for $900,000 given to supersede the judgment of the state circuit court, pending his appeal to the Supreme Court of the state, and the bond required by this order, and requested the bank, upon the giving of the $350,000 bond, to release and discharge the $900,000 supersedeas bond given in the case in the state court. This the bank declined to do, but suggested that, if he would give a bond in the sum of $350,000 conditioned to secure the payment of the balance due upon the judgment in the state case, and in addition pay all damages, costs, expenses, etc., sustained by the bank, resulting from the temporary injunction, and further agree that no defense, counterclaim, or set-off should be interposed by way of defense in a suit upon such bond, that could not be interposed by way of defense in a suit upon appeal bond, that the bank would then waive the giving of a bond for $350,000 required by the order of the court, and release and discharge the appeal bond for $900,000. This proposition was accepted by appellant, and the bond containing all the provisions demanded by the bank executed with the Maryland Casualty Company as surety, whereupon the $900,000 bond in the state case was released, and a stipulation waiving the execution of a bond for $350,000 as required by the order of this court, signed by both parties.

This court affirmed the decree of the District Court denying the injunction, but reversed the part of the decree sustaining the bank's motion to dismiss the bill of complaint. The opinion will be found in 268 F. 487, and as the object of the main litigation between the parties to this action is set out in that opinion, it is unnecessary to restate it in this opinion. In that opinion the court said: 'It is true that in the absence of the injunction the plaintiff must pay the judgment against him before his claims to the accounting for the $1,000.000 of bonds and the Van Blarcom dividends can be adjudicated. ' Upon the filing of the mandate of this court in the District Court appellant renewed his application for a temporary injunction, and upon denial thereof appealed to this court, and asked for an injunction while that appeal was pending. After a hearing, the court, composed of Judges Sanborn, Carland, and Lewis, denied the petition for the injunction.

On January 25, 1921, the bank instituted an action in the circuit court of the city of St. Louis against the Maryland Casualty Company, the surety on the bond of appellant for the $350,000 hereinbefore mentioned. The Casualty Company by its answer set up the same claims and counterclaims set up by the appellant in his answer and counterclaim in this cause. On motion of the bank the counterclaim of the Casualty Company was, by the St. Louis circuit court stricken out. On June 29, 1921, the Casualty Company served notice on the bank, demanding that it forthwith commence suit on said bond against appellant, the principal debtor on the bond. Under the statutes of the state of Missouri (sections 12687, 12688, and 12689, Rev. St. Mo. 1919) a surety has the right to call on the obligee to institute a suit against the principal on the

bond and if, after notice of such demand, the obligee fails to institute such an action against the principal within 30 days, the surety is released from liability. In...