Crehore v. Pike , 47 Me. 435 ( 1859 )

The opinion of the Court was drawn up by

Kent, J.

This is a suit upon a bond, given upon an application for a review and stay of execution; and the only questions are, whether the condition of the bond has been broken, so that the defendants are liable, and, if so, for what amount shall they be held. In the suit of the present plaintiff against Charles Pike, the plaintiff obtained a verdict and judgment thereon for $1018,02 damages, and $105,11 costs. Thereupon Pike applied for a review and a stay of execution, which stay was granted upon his filing the bond in suit. A review was also granted, and, upon trial of the review, the original plaintiff recovered a greater sum for debt or damage, than was awarded to him on the original judgment.

The record of the judgment in the review is, “ that the original plaintiff, having recovered on the review a greater sum for debt or damages than was awarded to him on the original judgment, recover judgment and execution against the original defendant for the excess, to wit, the sum of one hundred and twenty-three dollars and seventy cents, and his costs on the review.”

The condition of the bond in suit is, (after reciting the first judgment and the application for a review and supersedeas,) that “said Pike shall well and truly pay to said Crehore the amount of said judgment, if such shall be the final judgment on review, with interest thereon from the date of this bond up to the time of rendition of judgment in the action on this bond, at the rate of twelve per cent, annually.”

The defendant Pike has paid the amount of the execution rendered on the judgment on review for the excess and costs of review before stated. He and his sureties on the bond object to the plaintiff ’s recovery in this' suit, on the ground that the final judgment on review contains no affirmation of, adjudication, judgment or decree, concerning the original judgment reviewed. They contend that the judgment is not, in terms or by necessary implication, “ that said Pike shall well and truly pay to said Crehore the amount of the first judgmentand that therefore the condition of the bond has not been broken, and could not be until such express judgment is given.

It is evident that the bond and the judgment in review are both in exact conformity with the statute requirements. (R. S. of 1841, c. 123, § 8, and c. 124, § 13.) If the plaintiff cannot recover on the bond, it must be because the requirements of the statute are insufficient, when strictly pursued, to give the security intended.

In giving a construction to the language of the condition, it is material to lake into consideration the facts recited in the bond, and the intention of the Legislature in fixing the terms of the condition.

The original plaintiff obtains a judgment. He is entitled to the fruits of that judgment, an immediate issue of an execution to enforce without delay the payment of the amount which that final judgment has awarded to him; The defendant petitions for a review. This he may do, and obtain it, if he shows good cause, without filing any bond. The bond is required, when he asks that the payment may be delayed until the termination of the proceedings in review. The law says, you can have that indulgence, and we will stay the execution as you request, but the plaintiff is not to be denied his present rights to have immediate execution and payment, without ample security by bond, with sureties, that his present judgment shall be paid in full, with twelve per cent, interest, unless you on review show that he was not entitled to the judgment. The bond is required to give that security ; and the condition is that the original judgment shall be paid, if such should be the final judgment on review.

What did the parties understand by this condition ? They must be held to have had knowledge of the law. That law plainly points out the nature and extent of the final judgment in review, in case the result should be, as it was in this case, viz., that the judgment and execution shall be for the excess and cost. It also distinctly provides that the original judgment in cases of review shall generally be given without any regard to the former judgment, except in the two cases named: — 1st, where the sum originally recovered is reduced, and 2d, where it is increased; and in each of these cases the original judgment remains, the' judgment in review béing for the amount of the excess or diminution. In case of diminution, and when the former judgment has not been satisfied, there may be a set-off of one judgment against the other. But both are distinct judgments. If the plaintiff in review obtains a verdict- and judgment in his favor, and thus establishes the fact that the former judgment was entirely unjust, and ought not to have been rendered, the Court will regard the first judgment, if it has not been paid, as nullified; or rather, will, in effect, cancel it, or regard one judgment as practically off-set against the other, to prevent circuity of action. Dunlap v. Burnham, 38 Maine, 112.

It must be remembered that the question, in the case before us, does not arise in a suit upon the former judgments, as in Dunlap v. Burnham; nor upon any questions as to the excess, or the costs, or a claim for an off-set. The only question is what is the fair construction of the condition of this bond which the defendants signed. All other matters have been disposed of.

We are of opinion, that the condition, construed in connection with the recitals, and the statute, and the knowledge and intentions of the parties, is that, if the final judgment on review shall show, by fair intendment, that the original judgment was not erroneous, but was rightly recovered and ought to be paid by the defendant in that suit, then, these defendants will “ well and truly pay it, with the specified interest.”

The final judgment on review does expressly state that the original plaintiff did recover, on review, a greater sum, for debt or damages, than was awarded to him on the original judgment, and gives thereupon judgment and execution for the excess and costs. This, it seems, was the only judgment that could be rendered by the Court, under the statute of 1841; and does show that the original judgment was right, and ought to be paid.

It will be observed, upon examination, that the language of the condition is, not to pay “the amount of the final judgment on review,” as required by the Revised Statutes of 1857, but to pay the amount of the original judgment. This bond did not cover the judgment on review for the excess and cost. The recent statute seems to require a bond which shall cover both the original and final judgment on review, and may require hereafter a modification of the terms of the final judgment in review, to charge the signers of a bond given in conformity with the requirements of c. 89, § 4, of R. S. of 1857. The bond in question, however, is conditioned to pay the original judgment, if such shall be the final judgment on review. We have seen that this final judgment could, by the law which all the parties understood, no otherwise decree, as to the original judgment, than by recital of the fact as in this case.

It is said, in the argument, that the increase in the amount of the second verdict was only the accruing interest on the first, and that we have sufficient evidence before us that such was the fact. If we have, we do not perceive how that fact can affect the question of maintaining the action on this bond. It might affect the question of costs on the review, and whether there was in fact an increase or diminution of the original damages. It is not contended that, in this case, there was any diminution of the original verdict, as in 2 Greenl. 397, Kavanagh v. Atkins. The only claim is that the original verdict was taken as the basis, and interest added. In any view, the original judgment remains intact, undiminished, and justly due; and the plaintiff here claims nothing for the excess, or costs of review.

It would seem, if it was clearly established that the difference between the first and second verdicts was only the interest on the same sum found as damages by both juries, that the excess, which has been paid, was a part of the interest, at six per cent, on the original debt. If so, then the original plaintiff will, as contended by defendant, obtain interest for a portion of the time, at 18 per cent., in case he has judgment now for the whole time since the date of the bond to the present time, at 12 per cent. But we have not sufficient facts before us to enable us to determine whether the excess was for interest or not. .The plaintiff, probably, knows how the fact was, and must determine for himself whether justice and fair dealing does, or does not, require him to consider and allow the whole or a portion of that excess, as part payment of the interest. If parties do not agree on this amount of interest, the fact may be ascertained by a Judge at Nisi Prius, who may determine if the difference between the two verdicts was merely interest, and if so, that excess may be deducted from the amount of interest to be recovered in the suit.

Judgment for the plaintiff, for the amount of eleven hundred and eighty-three dollars and thirteen cents, and interest on that sum, at twelve per cent, per annum, from October 25, 1852, to the day of the rendition of this judgment on the bond in suit.

Tenney, C. J., and Rice, Appleton and Davis, JJ., concurred.