Tarpey v. Sharp

• Decision Date: 21 December 1895
• Docket Number: 582
• Citation: 43 P. 104,12 Utah 383
• Court: Utah Supreme Court
• Parties: D. P. TARPEY, RESPONDENT, v. JOHN SHARP AND OTHERS, EXECUTORS, APPELLANTS. [1]

43 P. 104

12 Utah 383

D. P. TARPEY, RESPONDENT, v. JOHN SHARP AND OTHERS, EXECUTORS, APPELLANTS. ^[1]

No. 582

Supreme Court of Utah

December 21, 1895

APPEAL from the District Court of the Fourth Judicial District. Hon Harvey W. Smith, Judge.

Action by D. P. Tarpey against John Sharp, James Sharp, and William G. Sharp, executors of the last will and testament of John Sharp, deceased, on a supersedeas bond to recover the value of the rents and profits of certain premises pending error in the Supreme Court of the United States. From a judgment for plaintiff, defendants appeal.

Affirmed.

Messrs Williams, Van Cott & Sutherland, for appellant.

In this case, however, while the action is to recover for the use and occupation of the premises or the value of the rents, the action is in form upon contract, being brought by the plaintiff upon the supersedeas bond against the executors of one of the sureties thereon. This bond was given in pursuance of section 1000 of the Revised Statutes of the United States is purely statutory and the condition thereof does not make the sureties thereon of the defendants in this case liable for the value of the rent or use and occupation of the premises. Roberts v. Cooper, 19 How. 373; Kountz v. Omaha Hotel Co., 107 U.S. 378. We submit that these adjudications are conclusive in this case and determine that the verdict and judgment herein are against the law.

The measure of plaintiff's damages in this case in any event, however, is compensation merely for his actual loss by reason of being deprived of the premises during the specified period. 3 Sutherland on Dam. (2 ed.) §§ 994-5-6; Sedge. on Dam. (8 ed.) §§ 907-8-9; Holmes v. Davis, 19 N.Y. 488. This was an action for mesne profits after recovery in ejectment, and the court held that the measure of damages was that which would obtain in assumpsit for use and occupation; that the compensation was to be adjusted as upon contract and not upon the footing of tort. Morrison v. Robinson, 31 Pa. St. 456; Carman v. Beam, 88 Pa. St. 319; Kille v. Eagle, 82 Pa. St. 102. In the latter case the court declared the rule of damages was a fair rent or yearly value of the premises and that compensation was the true measure of damages recoverable in such action. Grimes v. Wilson, 4 Blackford, 331; Griffey v. Kennard, 24 Neb. 174. This was an action for mesne profits after recovery in ejectment for uncultivated and unimproved lands, and the court in that case held that no damages could be recovered. In Darwell v. Stevens, 12 F. 559, the district judge declares the damages in such case consists of the value of the property by way of rents during the time the possession was withheld. In the case of New Orleans v. Gaines, 15 Wall. 624, the court lays down the principles upon which damages are to be arrived at, and determined that the true rule is compensation for the loss shown to have been sustained by being kept out of the possession of the property. West v. Hughes, 2 Am. Dec. p. 539; [S. C.] 1 Harris & Johnson (Md.), 574.

Messrs. Evans & Rogers, for respondent.

The rule seems to be well settled that where the evidence is conflicting this court will not disturb the verdict, unless it is so manifestly against the preponderance thereof that the court will not hesitate to declare that the evidence is clearly insufficient to support it, or that the jury have acted from passion or prejudice. Walker v. Popper, 2 Utah, 281; Dewey v. Snyder, 2 Utah, 344; Harrington v. Chambers, 3 Utah, 94; Chamberlain v. Raymond, 3 Utah, 117; Lehi Irri. Co. v. Moyle, 4 Utah, 327; Brooks v. Warren, 5 Utah, 118; People v. Swasey, 6 Utah, 93; U.S. v. Brown, 6 Utah, 115; Farr v. Griffith, 9 Utah 416.

Appellants seem to urge in their brief that the verdict and judgment are against law.

The condition of the supersedeas bond was that, "if the said Deseret Salt Company shall prosecute its said writ of error and answer all damages, etc."

The Supreme Court of the United States, in construing this condition in a similar supersedeas bond, say that one ground of recovery upon the bond could be "the use and detention of the property pending the appeal, that is, the rents and profits." Kountz v. Omaha Hotel Co., 107 U.S. 378.

Under the rule of the common law in the form of action known as ejectment, the nominal plaintiff could only recover possession of the premises with nominal damages only, and then the plaintiff had the right to bring his action for the mesne profits. 3 Suth. Dam. § 992; Newell on Eject. 614; 1 Bouvier's Dict. 581. Our statutes and practice follow the reform procedure, having abolished the common law rule, and in an action of ejectment, the plaintiff is now permitted to recover damages for withholding of the property and for rents and profits of the same. 2 Com. Laws 1888, § 3220. This action is not an action to recover mesne profits, but is an action upon a contract, the contract being the supersedeas itself. Crane v. Weymouth, 54 Cal. 476. The court will perceive from an examination of the record that no exception was taken by appellants during the trial of the case. The court charged the jury squarely, clearly and unequivocally that respondent's measure of damages was the value of the premises during the period covered by the bond. No exception was taken to the charge of the court, and consesequently, the charge of the court became the law of this case. Such an assignment of error as the "insufficiency of the evidence to justify the verdict and judgment, and that the same are against law" will not be noticed under our practice. Hayne on New Trial & Appeal, § 99; Martin v. Matfield, 49 Cal. 42. This court has not the right, under this assignment, to inquire whether the verdict is correct as a legal proposition or not. The only question to be determined is whether the verdict is in harmony with the instructions laid down by the court. If no instruction of the court was disregarded or misapprehended by the jury, then the verdict is not against law, and this is the extent of the court's inquiry. Hayne on New Trial & Appeal, § 99; Emerson v. County, 40 Cal. 545; 3 Deering's Code, § 657, note p. 290; Brumagin v. Bradshaw, 39 Cal. 35.

KING, J. MERRITT, C. J., and BARTCH, J., concur.

OPINION

KING, J.:

In 1885, plaintiff brought an action in ejectment against the Deseret Salt Company to recover possession of certain lands near the north end of Salt Lake. From verdict and judgment in his favor the defendant company appealed to the supreme court of the territory, where an affirmance of the judgment of the lower court was had. 5 Utah 494, 17 P. 631. Thereupon, by writ of error, the case was taken to the Supreme Court of the United States, and the judgment of the supreme court of Utah affirmed. 142 U.S. 241, 35 L.Ed. 999, 12 S.Ct. 158. Upon suing out the writ of error, a supersedeas bond was given, in pursuance of section 1000 of the Revised Statutes of the United States, which provides that "every justice or judge signing a writ of error, shall * * * take good and sufficient security that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and if he fail to make his plea good shall answer all damages and costs, where the writ is a supersedeas and stays execution." By the appeal and supersedeas the plaintiff was kept out of possession of the premises from March, 1888, until July, 1892, and this action is brought to recover damages for the use and occupation of said premises during said period. The jury awarded plaintiff damages and interest, amounting to $ 2,372, against the defendants herein, executors of one of the sureties, now deceased, on said bond.

Appellants contend that under the bond upon which action is brought no recovery can be had for damages resulting from the detention of the premises, or at least that plaintiff was entitled to recover only nominal damages. It is said by their counsel that the bond is statutory, and its conditions are such that no liability attaches to the sureties for the "value of the rent, use, or occupation of the" property. In support of this position the cases of Roberts v. Cooper, 19 How. 373, 15 L.Ed. 687, and Kountze v. Hotel Co., 107 U.S. 378, 2, 27 L.Ed. 609, 2 S.Ct. 911. S.Ct. 911, are cited.

An examination of the first case referred to reveals the fact that the plaintiff recovered the premises in controversy in ejectment proceedings, with only nominal damages. A writ of error was brought, and the defendant required to give bond in the sum of $ 1,000. Subsequently application was made to the Supreme Court of the United States for an order requiring additional security for the damages which would be occasioned by the delay and the working of the mine by appellant pending the determination of the cause by the supreme court. The application was denied, the court holding that, where nominal damages only are received in ejectment, the court cannot interfere to enlarge the security to recover damages which a plaintiff may obtain in an action for mesne profits or other losses he may sustain by being kept out of possession. It is apparent this case does not control the case at bar, and is clearly distinguishable from it. In the first place, the only point decided was that, the lower court having fixed the amount of security, there was no legislative provision authorizing the supreme court to increase such security. It is further to be observed that this decision was made in 1856, and under the common-law form of ejectment. In such action the proceedings were fictitious, and the plaintiff a nominal party. The damages were also nominal, in order to carry costs, there being no provision by which the jury were authorized to inquire into actual damages sustained by the plaintiff for the wrongful withholding of the...