Slade v. Dickinson

• Decision Date: 27 January 1949
• Docket Number: 1203.,Civ. A. No. 1185
• Citation: 82 F. Supp. 416
• Parties: SLADE v. DICKINSON. VAUGHAN et al. (AGNEW et al., Interveners) v. DICKINSON.
• Court: U.S. District Court — Western District of Michigan

82 F. Supp. 416

SLADE v. DICKINSON.

VAUGHAN et al. (AGNEW et al., Interveners) v. DICKINSON.

Civ. A. Nos. 1185, 1203.

United States District Court W. D. Michigan, S. D.

January 27, 1949.

Craig E. Davids and Allaben, Wiarda, Hayes & Hewitt, all of Grand Rapids, Mich., for plaintiff Slade.

Julius H. Amberg, of Grand Rapids, Mich. (James A. Vaughan, of New York City, and Butterfield, Amberg, Law & Buchen of Grand Rapids, Mich., of counsel), for plaintiffs and interveners Vaughan, Agnew and others.

George S. Norcross and Warner, Norcross & Judd, all of Grand Rapids, Mich., for defendant Dickinson.

STARR, District Judge.

On August 3, 1948, after protracted litigation, a final decree was entered in the United States District Court for the Southern District of New York in a suit in which Albert G. Dickinson of Grand Rapids, Michigan (defendant herein), was plaintiff, Arthur W. Rinke and others were defendants, and Petroleum Conversion Corporation and others were intervener claimants. That decree granted judgments against Dickinson and in favor of designated intervener claimants for the specified amounts of their respective claims, which judgments aggregated approximately $409,000. On September 1, 1948, Dickinson appealed from that decree to the United States Court of Appeals for the Second Circuit and filed cost bond. However, he did not file supersedeas bond to obtain a stay on appeal, as required by Rules 62(d) and 73(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. That appeal is now pending.

On August 17, 1948, Marshall P. Slade, a judgment creditor under the New York decree, filed complaint in Civil Action No. 1185, and on September 17, 1948, James A. Vaughan and others, judgment creditors under that decree, filed complaint in Civil Action No. 1203. On motion Cornelius R. Agnew and others, also judgment creditors under the New York decree, were granted leave to intervene as plaintiffs in the latter case. These plaintiffs and the interveners asked for judgments against defendant Dickinson based on their respective judgments provided for by the New York decree. They have filed motions for summary judgments, on the ground that there is no genuine issue of fact or law involved because their claims are based upon the final decree of the New York District Court, from which defendant has appealed, but which he has not stayed by filing a supersedeas bond. On the other hand, the defendant has filed a motion in each case for a continuance until the appeal from the New York decree has been determined. As these two suits involve the same facts and issues of law, it was agreed that they be consolidated for hearing on the motions for summary judgment and on the motions for continuance.

Rule 62, Federal Rules of Civil Procedure (Stay of Proceedings to Enforce a Judgment), provides in subsection (d):

"Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court."

Rule 73, Federal Rules of Civil Procedure (Appeal to a Circuit Court of Appeals), provides in subsection (d):

"Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal, he may present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. * * * When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay".

Under these rules of procedure a party taking an appeal from a judgment rendered against him in a United States District Court can stay proceedings to enforce that judgment pending appeal, only by furnishing a supersedeas bond. Fidelity & Deposit Co. of Maryland v. Davis, 4 Cir., 127 F.2d 780. Defendant Dickinson has not furnished a supersedeas bond in connection with his appeal from the decree of the New York District Court and, therefore, proceedings to enforce the judgments provided for by that decree are not stayed pending his appeal. In the absence of a stay the plaintiffs and interveners in the present suits could proceed by execution in the New York jurisdiction to enforce their judgments provided for by the District Court decree. However, they could not proceed with execution for the enforcement of the New York judgments in this jurisdiction until those judgments had been sued upon and reduced to judgments in this jurisdiction. 50 C.J.S., Judgments, § 892, pages 495, 496, and authorities cited.¹

The present suits are a method of enforcing the New York judgments, and their enforcement by execution in the New York jurisdiction, or by these suits in this jurisdiction, are but alternative methods of enforcement. In the case of Town of Fletcher v. Hickman, 8 Cir., 165 F. 403, the court held that a judgment creditor could maintain an action against a judgment debtor, even though the creditor could have enforced the judgment by execution issued thereon. The court said, 165 F. at pages 404, 405:

"The right to enforce payment of a judgment by process of execution is merely cumulative. The obligation of the judgment debtor is to pay the judgment when rendered. If he fails to perform the obligation, no reason is perceived why the judgment creditor may not resort to the courts of the land to enforce it."

If defendant Dickinson desired to stay execution in New York or to stay suits in other jurisdictions for the enforcement of the New York judgments, pending his appeal therefrom, he was required to file a supersedeas bond. No stay having been obtained, it is clear that the pendency of the appeal from the New York decree does not bar the present suits based on the judgments provided for by that decree. General Finance Corporation v. Penn Nat. Hardware Mutual, D.C., 17 F.2d 383; A. Coolot Co. v. L. Kahner & Co., 9 Cir., 140 F. 836; Woodbridge & Turner Engineering Co. v. Ritter, C.C., 70 F. 677; Union Trust Co. v. Rochester & P. R. Co., C.C., 29 F. 609. In the General Finance Corporation case the plaintiff recovered a judgment against the defendant in a Federal district court in Texas. The defendant appealed from the judgment but did not furnish a supersedeas bond to obtain a stay. During the pendency of the appeal the plaintiff began suit on the Texas judgment in a Federal court in Pennsylvania. In holding that the pendency of the appeal from the Texas judgment did not bar the suit in Pennsylvania, the court said, 17...