Aetna Ins. v. Robertson , 127 Miss. 440 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a motion here to discharge a supersedeas granted by Justice Anderson of this court, staying the order of the chancellor, condemning, and to pay over to Stokes Y. Robertson, state revenue agent, certain money impounded in the lower court, in the hands of the receivers appointed by the court in the suit of the revenue agent against the Aetna Insurance Company and a large number of other insurance companies. The money so impounded was brought into the court by attachment and other process, and there held by the receivers to await the decision of the chancellor in the suit of the revenue agent against the insurance companies to recover from the insurance companies penalties for the violation of the anti-trust laws of the state of Mississippi.

Upon the final hearing of the antitrust suit a decree was rendered against the insurance companies, in the aggregate for about eight million dollars. In addition to the decree of liability against the insurance companies for the sum of eight million dollars, the court further, decreed that the impounded money in the hands of the receivers be condemned to pay the decree, that the title to said funds be divested out of the insurance companies and be vested in the revenue agent for the benefit of the state and that the receivers should immediately pay over said money to the revenue agent in part settlement of the decree against the insurance companies; the amount of the impounded money, ordered paid over, being about five hundred thousand dollars.

The insurance companies appealed from the decree against them for eight million dollars without supersedeas, and applied to Justice. Anderson for a supersedeas as to that portion of the decree directing the impounded funds to be forthwith paid over to the revenue agent. Whereupon Justice Anderson granted a supersedeas to stay that part of the judgment ordering the impounded funds to be paid over to the revenue agent, until a decision is rendered by this court in the main case. The order granting the super-sedeas provides that each of the insurance companies shall enter into a bond of five hundred dollars to cover the cost of appeal, and the further sum of twenty-five per cent, of the amount of their respective funds impounded, conditioned to pay damages and interest should the decree of the lower court in the main case be affirmed. The required bonds were furnished and approved by the clerk of the chancery court.

The motion of the revenue agent now before us to discharge the supersedeas presents'for our consideration three propositions which merit discussion:

First, it is contended that the decree of liability against the insurance companies for eight million dollars is a money judgment which cannot be stayed by supersedeas unless bond be given in a penalty double the amount of the judgment appealed from, and that the order of the chancellor to pay over the impounded funds is not separable from the main money judgment and cannot be stayed except by a supersedeas bond as required by section 50, Code

Second, that the bo'nds furnished by the appellant insurance companies are insolvent and insufficient because the sureties thereon are foreign surety companies with insufficient assets in this state out of which the amount of the bonds could be made, and that the obligations could not be enforced against them in their home states because such recovery would be for a penalty for violating the statutes of this state ivliich no other state courts would enforce.

Third, that the surety bonds approved to the extent of fifty-one thousand, seven hundred six dollars and four cents in the Hartford Accident & Indemnity Company and the bonds to the extent of sixty-seven thousand, six hundred twenty-eight dollars and fifty-nine cents in the Eoyal Indemnity Company afford no protection to the appellee revenue agent because the Hartford Indemnity Company is under the management, control, and ownership of the Hartford Fire Insurance Company, one of the appellants here; and the Eoyal Indemnity Company is under the management, control, and ownership of the Eoyal Insurance Company, the Liverpool, London & Globe and the North British & Mercantile Company, appellants, and for this reason are not proper sureties on the bonds.

The supersedeas staying the order of the chancellor to pay over the impounded funds to the revenue agent was granted by Justice Anderson under the authority of section 56, Code of 1906 (section 32, Hemingway’s Code), which reads as follows: “In any case of an appeal to the supreme court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from or by the judge thereof, or by the supreme court or any of the judges of said court, upon such bond, with such sureties as said court or judge may direct in the order for a supersedeas

The main question presented for our decision is whether or not the supersedeas granted comes within the authority of the above section 56, Code of 1906 (section 32, Hemingway’s Code), or whether section 50,'Code of 1906 (section 26, Hemingway’s Code), is alone controlling in the case; said section 50, Code of 1906 (section 26, Hemingway’s Code), reads as follows: “On appeal from any interlocutory decree, where the chancellor shall allow a supersedeas, and on appeal from a final decree of the chancery court, or the final judgment of a circuit court where the appellant shall desire a supersedeas, bond shall be given by the appellant, payable to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty double the amount of the decree or judgment appealed from, or double the amount of the value of the property or other matter in controversy, to be determined by the officer granting the'appeal, conditioned that the appellant will satisfy the judgment or decree complained of, and also such final judgment as may be made in the cause, and all costs, if same be affirmed, and a supersedeas shall not issue until such bond shall have been given; and a supersedeas shall not be granted in any case pending in the supreme court, unless the party applying for it shall give bond as above required.”

It will be noticed that this last section provides for an appeal and supersedeas, and also provides that “guaranty or surety companies authorized to do business in this state” may become sureties on appeal bonds. The sureties complained of by the appellee appear to be surety companies authorized to do business in this state.

We think it is unquestionably true that the decree in this case,for eight million dollars is a money judgment, and that no stay of its execution by supersedeas could be granted unless the provisions of the last section above were complied Avith by the execution of bonds in a penalty double the amount of the judgment appealed from, to wit, eight million dollars; but Ave are of the opinion that the requirements of this section have no application to the granting of the supersedeas staying that part of the judgment ordering the immediate paying oyer of the impounded funds to the revenue agent; because that part of the judgment order ing the paying over of the funds is separable from the main judgment of liability for eight million dollars, as it is a separate order Avith reference to the disposition of the money, or property, in the hands of the court, Avhile the main judgment is a judgment of liability to pay, Avhich is not stayed, except so far as it may be involved in the order to fortlnvith turn over the impounded money to the successful litigant. This being true, we think the granting of the supersedeas by Justice Anderson was clearly authorized by the said section 56, Code of 1906 (section 32, Hemingway’s Code).

It is true that the order to turn over the impounded funds groAvs out of and is connected Avith the main money judgment but it is separable therefrom for the reason that its character is distinctly different from, and it may present questions for decision by this court independent of those presented by, the main judgment of liability. We have been unable to find any cases in point Avhich hold contrary to the views Ave have expressed, and the question seems to be largely one of local laAV to be determined by our statutes governing appeals. The rule recognizing separable parts of a judgment, though all included in the same rendition, is a principle followed in many jurisdictions; and an appeal without supersedeas as to one part and appeal Avith supersedeas as to another part is allowable, if the two parts are so different as to be separable. In State ex rel. Baker v. Baxter, 4 Neb. (Unof.) 869, 96 N. W. 647, the court said: “As the decree awards relator a money judgment for nearly thirteen thousand dollars, AArhich clearly comes Avithin the purview of subdivision 1, section 677, Code Civ. Proc., Ave have no doubt that the order of the court and the bond are of no effect so far as that portion of the decree is concerned. Relator may have execution notwithstanding. But the remainder of the decree is not governed by said section 677. If it stood alone, the district court, in its discretion, would be authorized to allow a supersedeas upon such terms, as to amount and conditions of the bond as it might fix. Penn Mutual Life Ins. Co. v. Creighton Theater Bldg. Co., 51 Neb. 659, 71 N. W. 279; Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, 67 N. W. 766. Can it matter that the decree of foreclosure is part of a decree which awards a money judgment also? We think not. In substance and effect there are two decrees, one for the recovery of money and one for foreclosure of a pledge. To dispose of the whole controversy in one suit, and thus do complete justice to the plaintiff, both are rendered in one proceeding, and as parts of one decree. The reason of the proceeding does not require, and justice to the defendants forbids, that this circumstance be held to compel superseding of the money judgment, which the defendants may not be able to do, in order to stay order of sale pending appeal from the decree of foreclosure, which they may be able and anxious to do if permitted. There appears to be precedent for superseding part of a decree covering-more than one subject. Covington Stock Yards Co. v. Keith, 121 U. S. 248, 7 Sup. Ct. 881, 30 L. Ed. 914. And this court evidently regarded such practice as admissible in Johnston v. Craig, 61 Neb. 98, 84 N. W. 606.”

The law requiring security by bond for appeals with supersedeas rests upon the just principle that the successful litigant shall be saved harmless from loss, and secured in the fruits of his victory. This is all that should be required of the losing litigant Avho desires that his case be reviewed on appeal, and that the status quo be maintained until a final decision is rendered in the cause.

Here we have the actual money safely impounded in the hands of the court, to be turned over or applied according to the judgment of the court when finally given. There can be no good reason or necessity for requiring by bond the forthcoming of the money at the final decision when the money is already in the hands of the court. No harm or damage can come to the successful litigant so far as this money is concerned by staying it in the safe possession of the court, because a bond has been required and furnished which amply provides for any loss in the way of interest, statutory damages, and the cost of the appeal.

The money in this case remains in the hands of the court instead of being released to the losing litigant, who may later on be required to produce it to satisfy a final judgment of the court. It is now held in court to be dealt with according to the final decision and this is all that could be expected in any event. It seems obvious to us that there is a difference when it comes to requiring a bond in double the amount of the judgment or the property involved where such property is to be released to, or remain in the hands of, the unsuccessful litigant pending an appeal, and where the thing involved is the actual money, not released to or remaining in the hands of the losing party, but held by the court. Property so bonded in double the value thereof may depreciate or Avaste before the final decision, and thereby cause a loss to the successful party, but this cannot occur in the case of impounded money in the hands of the court.

As to the second point made by appellee, we are led to disagree Avith the contention for at least two reasons, namely: In the first place the legislature of our state, has expressly provided by statute that surety companies authorized to do business in this state may be accepted on appeal bonds, and there is no contention in the record that the sureties on the bonds are not authorized to do business in this state; consequently we are constrained to folloAV the expressed will of the legislature. Then, again, Ave are of the opinion that the obligation of the sureties on the bonds can be enforced in the courts of the states of the foreign surety companies because the liability under the bonds is contractual and crvil, and not a liability for the violation of a penal statute of our state.

Now, referring to the third and last contention of ap-pellee regarding the invalidity or insufficiency of the bonds furnished by some of the appellant insurance companies, more particularly referred to in the former part of this opinion, we agree with counsel for the appellee that new bonds with other sureties should be given by the appellant insurance companies. We reach this conclusion on account of au affidavit filed by the appellee through his counsel, alleging in effect that the said insurance companies are in fact the same as the said bonding surety companies on their bonds. Of course, an appellant cannot become a surety upon his own bond. The affidavit referred to is here set out, and is not controverted or denied by the appellant insurance companies. “Personally appeared before me the undersigned authority, Chalmers Potter, who, having been first duly sworn, deposeth and says that the Royal Indemnity Company is owned and controlled by the Royal Insurance Company, who in turn also owns and controls the Liverpool & London & Globe Insurance Company, and the North British & Mercantile Insurance Company; that the Hartford Accident & Indemnity Company is owned and controlled by the Hartford Fire Insurance Company; that the above-named Indemnity Companies are sureties on the bonds of certain of the appellants, totalling one hundred nineteen thousand, three hundred thirty-five dollars and sixty-three cents; that said sureties have no property •whatsoever within the borders of the state of Mississippi or where the process of this court can reach.”

Therefore, we sustain the contention of the appellee revenue agent on his third point, and order that the appellant insurance companies referred to be required to furnish new bonds to the extent indicated, within thirty days after this decision is rendered, to bé approved by the chancery clerk of Hinds county, Miss.

The motion to discharge the supersedeas is overruled.