Security Trust Co. v. Robb

• Decision Date: 30 April 1902
• Citation: 116 F. 201
• Parties: SECURITY TRUST CO. v. ROBB.
• Court: U.S. District Court — District of New Jersey

116 F. 201

SECURITY TRUST CO. v. ROBB.

United States Circuit Court, D. New Jersey.

April 30, 1902

D. J Pancoast and John F. Harned, for plaintiff.

Robt. H. McCarter, for defendant.

The plaintiff, at the instance of the defendant, became surety on a replevin bond, and took a counter bond of indemnity in the sum of $15,000. The replevin having gone adversely to the defendant, suit was brought against the plaintiff on the replevin bond in the supreme court of New Jersey by the party to whom it was given, and a judgment recovered therein of $14,621.88, the 22d of January, 1901. The defendant Robb, had notice of this suit, and appeared and defended it by counsel. A writ of error in the court of errors and appeals was taken out, on which, in order to make it a supersedeas, bail was required to be entered within 10 days; and, no such bail having been entered, an execution was issued against the plaintiff on February 18, 1901, and the judgment paid. Plaintiff thereupon brought the present suit on the indemnifying bond given by the defendant. At the trial it was shown by the defendant that within the time required to make the writ of error in supersedeas the defendant met the representatives of the plaintiff with regard to entering such security; the City Trust Company of Philadelphia, an acceptable party, having agreed to become a bail. At that interview, however, further counter security was demanded by the representatives of the plaintiff of the defendant, either by way of collaterals or otherwise, before they would execute the supersedeas bond. The defendant declined to give this security, and thereupon the parties separated. Later on the execution already referred to was issued, and the judgment paid. On April 6th following plaintiff's counsel addressed a letter to the counsel for the defendant directing him to discontinue the prosecution of the writ of error unless the defendant was willing to reimburse the plaintiff for the sum which they had been compelled to pay with interest and costs, or would give proper security to repay them. It was suggested in the letter that, unless the direction to discontinue was complied with, counsel would appear in court and ask to have the writ dismissed. The writ was therefore discontinued, under protest. At the trial, upon these facts, each party requested the court to direct a verdict.

ARCHIBALD District Judge ^[1] (orally).

There are some things that are clear in my mind in regard to this and I confess that there are some things that are not. I am clear, for instance, that the Security Trust Company was not bound to prosecute the writ of error themselves. On the other hand, I am also clear that Mr. Robb, as surety on the replevin bond, was entitled to have the case reviewed by a writ of error, and that if the Security Trust Company did anything to impair that right it would, under the decisions which have been cited to me, have released Mr. Robb, the surety. The real question, then, is whether, under the facts as shown, that right was impaired. An example of a case where it would be is found in American Surety Co. v. Ballman (C.C.) 104 F. 634, where the writ was dismissed after it had been taken out, or in Stark v. Fuller, 42 Pa. 320, where, in an action to enforce a mortgage guarantied by the defendant, the plaintiff having recovered less than the amount guarantied, and a rule for a new trial having been taken at the instance of the surety, the plaintiff agreed that it might be discharged. In the present instance, however, we have something considerably less than that, so far, at least, as the interview over which there is so much controversy is concerned. I do not see how anything occurred at that time which would relieve the surety. It is true that, as a condition to executing the appeal bond, the Security Trust Company, by its officers, demanded that Mr. Robb should put up collateral, and the parties divided upon that, and the bond was not executed. It is also proved that in the preparation of that appeal bond Mr. Robb had followed the suggestion of the Surety Company as to who would be acceptable to go upon that bond, to wit, the City Trust Company, and the execution of the bond by that company, upon the payment of some $144 premium, had been secured. But I do not see that that made a contract a breach of which would amount to a release, or impair the right of the surety to have a further review of the case. Nor was that interview necessarily final, either in the time or in the manner of arranging for the appeal; and, whatever part it played in that transaction, it is also in evidence that, in addition to...