Trent v. Rhomberg

• Decision Date: 14 May 1886
• Parties: TRENT <I>et al.</I> v. RHOMBERG <I>et al.</I><SMALL><SUP>3</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 510

TRENT et al. v. RHOMBERG et al.³

Supreme Court of Texas.

May 14, 1886.

Appeal from district court, Travis county; A. S. WALKER, Judge.

Suit by J. P. Trent and others against J. A. Rhomberg and others to enforce defendants' liability as sureties on an appeal-bond. Judgment for defendants. Plaintiffs appeal. Reversed.

Carleton & Morris, for appellants. Robertson & Williams and Sneed, Pendexter & Burleson, for appellees.

ROBERTSON, J.

The right to an independent suit upon an appeal or writ of error bond, as upon any other contract, is conceded by all authorities, as far as the research of counsel or the court has developed them. Lobdell v. Lake, 32 Conn. 16; State v. Boies, 41 Me. 345; Legate v. Marr, 8 Blackf. 404; Ellis v. Hull, 23 Cal. 161; Philbrick v. Buxton, 40 N. H. 384; McConnel v. Swailes, 2 Scam. 571; Karthaus v. Owings, 6 Har. & J. 138; Hobart v. Hilliard, 11 Pick. 143; Ashley v. Brazil, 1 Ark. 144; Smith v. Huesman, 30 Ohio St. 669; Drummond v. Husson, 14 N. Y. 60; Gregory v. Obrian, 13 N. J. Law, 11; Ives v. Bank, 12 How. 159; Sessions v. Pintard, 18 How. 106; Supervisors v. Kennicott, 103 U. S. 554; Marryott v. Young, 33 N. J. Law, 336.

Such an instrument has all the requisites of a valid contract. Mestling v. Hughes, 89 Ill. 389. It is voluntarily entered into, and is supported by sufficient consideration. Hester v. Keith, 1 Ala. 316; Rowlet v. Eubank, 1 Bush, 477; Burroughs v. Lowder, 8 Mass. 372. In Gimperling v. Hanes, 40 Ohio St. 114, it was held that the appeal had no existence, and hence the bond was without consideration. Gregory v. Obrian, 13 N. J. Law, 11, proceeds upon the same principle. In this case the execution was superseded, the appeal was perfected; the consideration of the contract was ample, and was received. If the contract is broken, what exonerates the parties from suit and damages? It is claimed that the statutory remedies upon the bond, which in Texas meet all the phases of liability, are exclusive. But no case cited, and none found, sustains this doctrine. In Louisiana the sureties upon the bond are reached by a summary proceeding in the lower court. Wilson v. Churchman, 6 La. Ann. 468. And in Smith v. Gaines, 93 U. S. 341, it was held that this remedy might be used in the federal circuit court in that state as a substitute for an independent suit on the bond; but there is no intimation anywhere that the judgment creditor may not waive the summary procedure prescribed for his benefit, and pursue his common-law remedy upon the bond. In Ohio the statute provides a remedy for the appellee in every case, except the dismissal of the appeal or the affirmance of the judgment, and expressly authorizes suit on the bond in those two cases. This is held to be a statutory denial of the right to an independent suit in all other cases. Gimperling v. Hanes, supra. On the other hand, the bond being a contract, for the breach of which the common law furnishes the forms and means of redress, the general principle is that statutory remedies are not exclusive, but cumulative. 2 Wait, Act. & Def. 42, 286; Candee v. Hayward, 37 N. Y. 653. In Lobdell v. Lake, 32 Conn. 16, in a suit upon an appeal-bond, it was held that the surety was liable, although the statute provided another remedy for the very breach alleged. In State v. Boies, 41 Me. 344, the statute prescribed a specific remedy for breach of a recognizance for appeal, but it was held that the obligee was not deprived of the right of independent suit. The judgment on the bond in the appellate court — the validity of a law authorizing such judgment was affirmed on question, in Beall v. New Mexico, 16 Wall. 539 — and summary proceedings against sureties are provisions for the benefit of the appellee or defendant in error; and whether beneficial or not, would be problematical, if the obligee was confined to the statutory remedies in all cases. The object of the law, as well as the ends of justice, is best accomplished by holding that these remedies are cumulative, consistently with the enlightened precedents and the general principle of construction already noticed.

The right of the plaintiffs to maintain a suit on the bond being decided, the plaintiffs were entitled to recover if a breach of the bond was proved, and the breach has not been satisfied. The facts are admitted. The transcript was filed in the supreme court, and the case was there dismissed for want of further prosecution by the principal obligor. The judgment of dismissal awarded costs against all the obligors, and this judgment has been paid. The bond was conditioned that the principal obligor "shall prosecute its appeal with effect, and in case the judgment of the appellate court shall be against it" the principal "shall perform its judgment, sentence, or decree, and pay all such damages as said court may award against it," in literal conformity to the statute then and now in force. The appellees contend that these obligations are in the alternative; that they were bound either that the principal should prosecute its appeal with effect, or pay the judgment of the supreme court; and that they have performed the contract in paying the costs adjudged against them in the order dismissing the appeal. The statute provides for a contract to do two things, and not one of two. The bond is, in terms, that both shall be done, not one or the other. In Hobart v. Hilliard, 11 Pick. 143, the bond was conditioned to prosecute the appeal with effect, and pay the intervening damages. It was held that the appeal was prosecuted with effect, but the liability of the sureties upon the other condition was not questioned. In Gould v. Warner, 3 Wend. 54, the suit was on a replevin bond conditioned to prosecute the suit with effect and return the goods. It was held that the obligation was not discharged by returning the goods. In Marryott v. Young, 33 N. J. Law, 336, the suit was on a certiorari bond conditioned that the principal "should prosecute the said certiorari in the said circuit court; should pay the sum recovered in the court below, with interest and costs, if the judgment be affirmed; and should," etc. The condition to prosecute the certiorari was held to be an independent obligation, upon which an action could be maintained, though the judgment was not affirmed. See, also, Perreau v. Bevan, 5 Barn. & C. 284. As a general rule, when the appellant prosecutes his appeal with effect, the judgment is reversed, and the cause is remanded, with no sentence or decree to be performed by the appellant, or award of damages to be paid by him. This general rule was evidently in view when an appeal-bond, with the obligation to perform the conditions in the alternative was held to be sufficient, in Robinson v. Brinson, 20 Tex. 438. In the great majority of cases then coming before this court, if the judgment was reversed, the cause was remanded for a new trial. But, under the practice inaugurated under the present constitution, many cases are tried in the district court without a jury; and in many of them the judgment is reversed, and here rendered. In those in which the judgment is reversed, and here rendered against the appellant, the appeal is prosecuted...