Leech v. Karthaus , 135 Ala. 396 ( 1902 )

McCLELLAN, C. J.

We art', not advised by this record Avhat interest Karthaus and the Other defendants liad in the action brought by Sarah Leech against Johnson, Campbell and Moore for the recovery of a tract or lot of land, or that they had any interest. They were not parties to that suit and it is to he assumed for the purposes of this appeal that they were utter strangers to it. After Mrs. Leech recovered judgment in that suit, however, Karthaus and the others filed an application for a rehearing and executed the bond now sued on for a supersedeas of that judgment pending the application for rehearing. The. bond is payable to Mrs. Leech and is conditioned to prosecute the petition to effect or failing therein to pay such costs and damages as she might sustain by the issuance of the writ of supersedeas. The writ was issued upon this petition and bond, and after the writ had been in esse for several months, and the judgment for possession of the land had in point of fact been suspended in consequence of the writ, the petition for rehearing was denied and dismissed by the court, and the plaintiff in the judgment thereupon proceeded to execute her judgment and ivas nut in posses si on under it. Of course, Karthaus et al. had no stand ing to exhibit and prosecute the petition for a rehearing. The petition should not have been entertained, nor should the bond have been accepted and the writ issued upon it. But the petition was entertained, the bond was accepted, and the writ was issued; and in consequence of its issuance Mrs. Leech was kept for several months out of the possession of her land, and nut to costs and expenses. The question is whether the obli<>-ors on this bond are liable for the damages sustained by Mrs. Leech upon a common law obligation. We think they are. They voluntarily executed the bond. They accomplished by its execution tlie end they had in view, the keeping of Mrs. Leech out of possession pending the application for .rehearing. That was a sufficient -consideration of detriment to the obligee to support, the voluntary undertaking of the obligors. The question is not whether the. bond was authorized by statute, nor whether it should have been accorded the effect which was given to it; but whether iu point of fact it did accomplish the result it was intended by its male-ers to accomplish, and whether this result was detrimental to Mrs. Leech, the obligee. Having been given for the purpose of inducing certain action on the part of the ministers of the law — the issuance of the writ of snpersedas — and having induced that action in accordance with the intention of the obligors, and that action having inflicted damages upon the obligee, and the condition of the obligation having been broken, the ebligors are liable for such damages, notwithstanding the execution of the bond did not authorize or warrant the issuance of the writ. This question has been so thoroughly discussed and clearly decided in former adjudications of this court that a citation of them will take the place and avoid the necessity for further discussion of it here.—Munter & Faber v. Reese et al., 61 Ala. 395; Hester et al. v. Keith & Kelly, 1 Ala. 316; Whitsit v. Womack, 8 Ala. 446; Jenkins v. Lockard's Admr., 66 Ala. 377.

We And nothing in the cases of Crowder v. Morgan, 72 Ala. 535, and Steele v. Tutwiler, 63 Ala. 368, cited for appellee, or in any other case opposed to the conclusion we have reached.

The circuit court erred iu sustaining the demurrer to the complaint, and rendering judgment for the defendants. The judgment for the defendants and the judgment on demurrer will be reversed. A judgment will be here entered overruling the demurrer. The cause will be remanded.

Reversed, rendered in part and remanded.