Rood v. Horton

• Decision Date: 23 December 1924
• Docket Number: 18842.
• Citation: 231 P. 450,132 Wash. 82
• Court: Washington Supreme Court
• Parties: ROOD et al. v. HORTON et al.

231 P. 450

132 Wash. 82

ROOD et al. v. HORTON et al.

No. 18842.

Supreme Court of Washington

December 23, 1924

Department 2.

Appeal from Superior Court, Pacific County; Hewen, Judge.

Action by Zena C. Rood, executrix of the will of Edwin S. Rood deceased, and another against Richard S. Horton, Frank O'Connor, and John O'Rourke, of whom defendant O'Rourke alone was served and defended. From judgment for plaintiffs, defendant O'Rourke appeals. Reversed in part and modified.

John J Langenbach, of Raymond, for respondents.

HOLCOMB J.

This case had its origin in Omaha, Neb., where respondent's testator and herself brought an action against the defendant Horton to recover possession of certain premises in that city, described as apartment No. 3, Stratford Terrace, on a certain avenue. On April 17, 1916, in the county court of Douglas county, Neb., the respondents recovered judgment against Horton for the restitution of the premises involved. Horton appealed from the judgment of the county court to the district court of Douglas county, Neb. For the purposes of the appeal a bond or undertaking, in conformity with the statutes of Nebraska, was executed by Horton, as principal, together with Frank O'Connor and John O'Rourke, as sureties. The bond or undertaking was dated April 26, 1916, recited the judgment appealed from, and continued as follows:

'Now, therefore, we, R. S. Horton, as principal, and John O'Rourke and Frank O'Connor, as sureties, are held and firmly bound unto Zena Rood and Edwin S. Rood, and for the payment of this bond we jointly and severally bind ourselves.

'The condition of this bond is such that if judgment is rendered against said defendant on said appeal and said defendant satisfies the final judgment and costs and pays a reasonable rental for said premises during the time he wrongfully holds the same, then this obligation to be null and void, otherwise to be in full force and effect.'

At that time all of the parties were residents of Omaha, Neb. At the present time the only defendant in the state of Washington is the appellant, O'Rourke, who alone was served and defends this action.

After the above-described undertaking was given, Horton prosecuted his appeal from the county court to the district court, and the district court, in September, 1916, affirmed the judgment of the county court, with costs to plaintiff. An appeal was then taken by Horton to the Supreme Court of Nebraska, which resulted in the affirmance of the judgment of the district court, on July 13, 1918.

Horton remained in possession of the premises involved until September 4, 1918, when respondents regained possession thereof. During all of the time from the time the judgment of the county court of Douglas county was entered until September 4, 1918, Horton failed and refused to pay the rentals that had been theretofore paid by him per month. This action is to recover upon the penalty of the bond above referred to, and is not an action upon the judgment, as appellant seems to consider. It is to recover the reasonable rental of the premises from April 17, 1916, until September 4, 1918, which is alleged to be the sum of $45 per month with 7 per cent. interest on each installment, and to recover the costs allowed and taxed in the Nebraska appeals.

The above bond was given pursuant to section 8481, Revised Statutes of Nebraska 1913, pleaded in respondent's reply to the answer of appellant, as follows:

'The party appealing shall within ten days from the rendition of such judgment give an appeal bond with two or more sureties to be approved by the judge or justice conditioned, in case of appeal by the plaintiff, that he will satisfy the final judgment, and costs; and in case of appeal by the defendant, that he will satisfy the final judgment and costs, and will pay a reasonable rent for the premises during the time he shall unlawfully withhold the same.'

The first contention of appellant is that there is no proof that he signed the bond in question. It is admitted in his answer that he signed a 'similar' bond. There was introduced in evidence a certified copy of the original bond as filed in the county court for Douglas county, Neb. Appellant, who testified in his own behalf, did not dispute the contents of the exemplification of that bond, nor offer any evidence that there was any difference between the bond he actually signed and that one. That bond was properly certified and authenticated by the clerk of the county court, who had the original in his files. We see no merit in this contention.

It is next contended that the action is barred by the statute of limitations. This action was commenced in the lower court in March, 1923. This is an action upon an instrument in writing. It is stipulated that the limitation of the state of Nebraska upon such written instruments is the same as the limitation in this state, and it may be assumed that the limitation in the state of Nebraska was contemplated when the undertaking was furnished. In any event, the same limitation period exists here. The mandate of the Supreme Court of Nebraska was filed in the district court of Douglas county, Neb., July 12, 1918. That made the judgment of the district court final, which, in turn, made the judgment of the county court previously entered against the principal defendant in that action final, and, appellant claims, made the cause of action against the sureties, including this appellant, accrue as of the date of the judgment of the district court.

Contention is also made by the appellant that there never was any valid appeal from the judgment of the district court to the Supreme Court of Nebraska, for the reason that the judgment of the district court was rendered on September 28, 1916, and no appeal bond was filed or approved until November 3, 1916, and that the appeal bond filed and approved was not a supersedeas bond, and that therefore the time had elapsed in which an appeal could be taken, the appeal was ineffective, and the period of limitations began with the judgment of the district court for that reason.

This contention has the effect of arguing that the Supreme Court of the state of Nebraska did not have jurisdiction of the appeal, although appellant's principal appealed the case, the other parties, respondents here, submitted themselves to the jurisdiction of the Supreme Court, and that court finally determined the appeal. We will not concern ourselves with a collateral determination of whether the Supreme Court of Nebraska had jurisdiction of that appeal. We must presume that it had. We will not go into a careful examination of the statutes of Nebraska as to how judgments there must be appealed and superseded, but content ourselves with the assumption that that court of last resort had jurisdiction. The appeal had the effect of suspending the finality of the judgments of the district court and of the county court.

The statute of limitations of the state of Nebraska, and of this state, therefore, began to run not earlier than July 12, 1918. The cases and authorities cited by appellant as to the limitation of judgments in this state do not apply, for this is not an action upon a judgment. Hence the action is not barred by the statute of limitations.

It is contended that the trial court should have instructed the jury to bring in a verdict for appellant for the reason that respondent's testimony failed to show what time the principal defendant, Horton, occupied the premises in question. Neither are we concerned with that question. The undertaking sued on here is to satisfy...