Stolze v. United States Fidelity & Guaranty Co.

• Decision Date: 10 November 1910
• Parties: STOLZE v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Missouri Court of Appeals

131 S.W. 915

153 Mo. App. 29

STOLZE v. UNITED STATES FIDELITY & GUARANTY CO.

St. Louis Court of Appeals. Missouri.

November 10, 1910.

1. PRINCIPAL AND SURETY (§ 51)—RELATION —EFFECT OF JUDGMENT.

The relation of principal and surety is not destroyed by a judgment against them, but so long as the relation continues the equities which inhere therein obtain and are available for the surety's relief.

2. PRINCIPAL AND SURETY (§ 118)—RELEASE OF SURETY—JUDGMENT FOR PRINCIPAL.

A surety against whom judgment has been recovered, in a suit on the contract of suretyship, is discharged by a subsequent judgment in favor of the principal alone on the same obligation.

3. PRINCIPAL AND SURETY (§ 118)—APPEAL BOND—DISCHARGE OF SURETY.

Judgment having been rendered against a railway company for $15,000, defendant became surety on its appeal bond, and on appeal the judgment was affirmed to the extent of $8,000; plaintiff being required to remit the balance. A new judgment was rendered in the Supreme Court for $8,000, which sum the railway company paid with accrued interest from the date of its entry. Plaintiff claiming the right to interest thereon from the date of the original judgment sued the railway company and defendant as surety therefor and recovered judgment. The railway company only appealed to the Court of Appeals, where the judgment was reversed on the ground that plaintiff was only entitled to interest from the date of the new judgment entered in the Supreme Court. Held, that such reversal relieved the surety from liability on the judgment recovered against it.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by John Stolze against the United States Fidelity & Guaranty Company. Judgment for defendant, and plaintiff appeals. Affirmed.

A. R. Taylor, for appellant. Boyle & Priest and T. E. Francis, for respondent.

NORTONI, J.

This is an attempt to enforce the liability of a surety for an undertaking after the indebtedness vouchsafed had been extinguished by the principal obligor. The court denied the right asserted and plaintiff complains of the ruling.

The facts out of which the question arises are as follows: It appears plaintiff recovered a judgment for $15,000 against the St. Louis Transit Company and an appeal was perfected therefrom by defendant in that case to the Supreme Court. The present defendant, the United States Fidelity & Guaranty Company, became surety on the appeal bond of the St. Louis Transit Company in the amount of $30,000. The condition of the appeal bond on which the present defendant undertook to respond for the default of its principal, St. Louis Transit Company, was as follows: "Now, if said appellant shall prosecute this appeal, with due diligence, to a decision in the appellate court, and shall perform such judgment as shall be given by such court, or such as the appellate court may direct the circuit court, city of St. Louis, to give, and if the judgment of said circuit court, or any part thereof be affirmed, and said appellant shall comply with and perform the same, so far as it may be affirmed, and pay all damages and costs which may be awarded against it by any appellate court, then this obligation to be void, otherwise to remain in full force and effect."

In due time the Supreme Court disposed of the appeal by affirming the judgment appealed from to the extent of $8,000; that is to say, plaintiff was required to remit $7,000 of his recovery, and a new judgment was rendered in the Supreme Court in his favor in the amount of $8,000. Stolze v. St. Louis Transit Co., 188 Mo. 581, 87 S. W. 517. The St. Louis Transit Company, defendant in that suit, paid plaintiff the amount of the judgment given by the Supreme Court, that is, $8,000, and such interest thereon as accrued after its rendition in the Supreme Court, but declined to pay interest on the amount from the date of the original judgment in the circuit court from which the appeal was prosecuted. The St. Louis Transit Company, in thus paying the amount of the judgment, $8,000, and interest from the date of its rendition in the Supreme Court, proceeded on the theory that as the judgment of the circuit court was not affirmed for the full amount an entirely new judgment was given by the Supreme Court which operated the accrual of interest from its date only. Plaintiff denied the theory suggested and, to the end of recovering interest from the date of the original judgment in the circuit court, instituted his suit against both the St. Louis Transit Company and the present defendant on its appeal bond for the sum of $1,254, which appears to be 6 per cent. on the amount of $8,000 from the date of the rendition of the original judgment in the circuit court to the date of its affirmance on appeal. On a trial, the circuit court accepted the...