Drake v. Webb , 63 Ala. 596 ( 1879 )

STONE, J.

In Hughes v. Hatchett, 55 Ala. 539, and in Steele v. Tutwiler, at the present term, we considered, to some extent, the question of the proper condition of a supersedeas bond in cases of appeal falling'within section 3928 of the Code of 1876. The rules we there declared were followed in granting the appeal out of which this action grew. The condition of the present bond is, to “ prosecute th9 appeal to effect, and pay such cost and damages as the other parties to the cause may sustain by reason of such appeal, if the decree of said Chancery Court is affirmed.” The chancellor had directed the amount and condition of the appeal bond, as required by the statute. The chancery decree appealed from, ordered the fund in litigation to be placed in the hands of the register, and a certain part of it to be paid to Webb, the plaintiff in this suit. In consequence of the appeal and supersedeas, that fund lay idle and unproductive in the hands of the register, until the decree of the chancellor was affirmed in this court; a delay of fifteen xnonths. It was admitted, on the trial of this ease, that a reasonable attorney’s fee for defending against said appeal in this court is one hundred dollars. The recovery in this case is the sum of the interest which accrued on the fund ordered to be paid to Webb, while its payment was suspended by the supersedeas, and the attorney’s-fees for defending against the appeal. It seems to us that these damages are the direct, immediate, proximate result of the appeal and supersedeas, and that they fall directly within the purview of the bond. These are damages caused by the appeal, and the decree of the Chancery Court was affirmed in this court.

It is contended for appellant, that the condition of the supersedeas bond required in this case, and the recovery upon it, are violative of the statute which declares, that an appeal lies to the Supreme Court, as matter of right, from any final judgment or decree of the Chancery, Circuit or Probate Court, &c.~Code of 1876, § 3916. The appellate jurisdiction of this court is defined in article 6, section 2, of the constitution, in the following language : “ Except in cases otherwise directed in the constitution, the Supreme Court shall have appellate jurisdiction only, under such restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law.” The legislature, then, may regulate this right of appeal, and, • to some extent, may restrict it. One regulation, imposed by the legislature, is, that in all appeals in civil causes, with exceptions in favor of certain persons unable to give bonds, the appellant must give security for the costs of appeal. — Code, § 3950. Security for costs does not supersede the judgment. Sections 3927 and 3928 of the Code declare in what manner supersedeas of judgments may be obtained, when appeals are taken to this court. The first of the named sections provides for money judgments, the collection of which is suspended by the supersedeas bond. When the judgment is affirmed, on appeal taken under this section, the law declares what the judgment shall be. The surety, by the judgment of this court, becomes bound with the appellant for the amount of the judgment the supersedeas bond suspended. This is witbin the very letter of bis bond, which binds him “to satisfy such judgment as the Supreme Court may render in the premises.” It also binds him to pay the statutory damages on affirmance, and the costs of appeal; for these are a part of the judgment rendered by this court. All these results are provided for, by the very terms of the statute, which prescribes the measure of liability and recovery.

When, however, the decree or judgment is for something other than the payment of money, then the bond provided for by section 3927 is not in tbe condition to meet the wants of the case, if a supersedeas is desired. In such cases, this court can not render a judgment, binding the surety to obey or perform the judgment or decree, or to pay any damages on the affirmance. The judgment or decree furnishes no criterion or standard for the imposition of damages; and the statutes have not authorized this court to adjudge damages in such a case. The most we can do is to affirm, and adjudge costs of appeal; the latter against the appellant and his surety. Hence, in such cases, there is a necessity that the supersedeas bond shall contain other conditions, varied according to the nature of the judgment or decree appealed from. The judge or chancellor presiding, or the register, must fix the amount and condition of the appeal bond in these cases. — Code, § 3928. Both the amount and the condition should be adapted to the nature of the decree or judgment appealed from, and the damages which may result from the suspension. The appellee should be made secure, but no unreasonable terms should be exacted.

We find nothing in the condition of the present bond which we consider unreasonable. The damages imposed are not a tax, or clog, placed on the appellant’s right of appeal. That he could have had without a supersedeas bond, on giving security for costs of appeal. Such security for costs would have imposed on his surety no other liability than to pay the costs of appeal, if unsuccessful. This is a mere regulation of the right of appeal, for the security of the officers of court. But, when an aggrieved suitor desires to go further, and suspend the execution of a judgment or decree rendered against him, this is not simply a question of the right of appeal. It goes much beyond that. Very great damage may result from the appeal and the suspension. The condition of a bond, entailing these consequences, should be so adjusted and prescribed, as to secure the appellee against all loss or damage that may result proximately from the appeal and supersedeas. Attorney’s fees are proximate damages, cast on the appellee by tbe appeal, and are, therefore, within the condition of the bond. We are not able to distinguish, in principle, between this question and the kindred one which arises in suits on injunction and detinue bonds.

The case of Jenkins v. Hay, 28 Md. 547, was very like this, in every material feature. The court said: “ Under this bond, the plaintiffs are not confined to the recovery of costs in the appellate court, and loss of interest, but may recover for any further loss or injury which they can show proceeded from the suspension of the decree, caused by the filing of the bond.” On tbs question of the right to recover attorney’s fees, see Ferguson v. Baber, 24 Ala. 402; Burton v. Smith, 49 Ala. 293; Seay v. Greenwood, 21 Ala. 491; Metcalf v. Young, 43 Ala. 643; Mills v. Long, 58 Ala. 458; Higgins v. Mansfield, 62 Ala. 267.

We find no error in the record, and tbe judgment of the Circuit Court is affirmed.