Prosser v. Whitney

• Decision Date: 29 June 1881
• Citation: Prosser v. Whitney, 46 Mich. 405, 9 N.W. 449 (Mich. 1881)
• Court: Michigan Supreme Court
• Parties: PROSSER v. WHITNEY.

9 N.W. 449

46 Mich. 405

PROSSER v. WHITNEY.

Supreme Court of Michigan

June 29, 1881

In a chancery case the decree denied complainant the relief prayed, and denied costs to defendant P. Complainant appealed from the portion of the decree denying relief, and defendant P. from the portion denying costs to him, giving a bond conditioned to pay, satisfy, and perform the decree or final order of the supreme court, and to pay all costs in case the decree of the circuit court in chancery should be affirmed in the parts appealed from by him. The appellate court, by a single decree, awarded complainant relief as prayed, with costs of both courts as against defendant P., and made no specific decree as to P.'s appeal. Held, that the bond upon defendant P.'s appeal was liable for such costs.

Error to Kalamazoo.

O.W Powers, for plaintiffs in error.

Brown Howard & Roos, for defendants.

COOLEY J.

The suit in the court below was by Whitney and Wheat against Prosser and the other plaintiffs in error to recover upon a bond given on taking an appeal in chancery. In the chancery cause Whitney and Wheat were complainants and Prosser was one of several defendants. The decree denied to the complainants the relief they prayed, but it also denied costs of his defence to Prosser. Complainants appealed and so did Prosser and under the statute the parties appealing were required to give bond to abide the order of the appellate court. Prosser's bond was in the penal sum of $150, and the condition was as follows: "The condition of the above obligation is such, that whereas, on or about the nineteenth day of February, A.D.1879, a decree was entered in the circuit court for the county of Kalamazoo, in chancery in a certain cause therein pending, wherein the said Clark J. Whitney and Isaac C.V. Wheat are complainants, and the said Isaac P. Prosser, among others, are defendants; and whereas, the said complainants have appealed from said decree to the supreme court of the state of Michigan; and inasmuch as in and by said decree the said Isaac P. Prosser is denied costs of suit in the circuit court, and he having appealed from that portion of said decree denying him costs. Now, therefore, if the said Isaac P. Prosser shall pay, satisfy and perform the decree or final order of said supreme court, and shall pay all costs in case the decree of the said circuit court, in chancery, shall be affirmed in parts appealed from by said Isaac P. Prosser, then this obligation to be void, otherwise to remain in full force and effect."

The appellate court by its decree awarded to the complainant the relief prayed for, with costs of both courts as against Prosser. The costs were taxed at upwards of $300. An execution issued upon the decree having been returned nulla bona, this suit was then instituted upon Prosser's appeal bond. The circuit court gave judgment in favor of the plaintiffs below for the amount of the penalty. The decree of the supreme court took no notice of the separate appeals, but awarded costs to complainant in precisely the...