Sullivan v. Fried , 42 Mont. 335 ( 1910 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Action to recover upon an undertaking to stay execution pending appeal from a judgment recovered by the plaintiff in an action in claim and delivery. The judgment in question was affirmed by this court in Sullivan v. Girson et al., 39 Mont. 274, 102 Pac. 320. The trial in the district court resulted in a judgment of nonsuit in favor of defendants. Plaintiff has appealed from the judgment.

The complaint recites the history of the litigation in the original action terminating in the judgment in favor of plaintiff declaring her entitled to recover the property in controversy, or, in case delivery thereof could not be had, to recover the sum of $850, with the costs of the action. It alleges that, upon rendition of the judgment, the defendants Girson and Neer, instead of delivering up the property or paying the plaintiff the value thereof as declared by the judgment, appealed to the supreme court and executed the undertaking with defendants Fried and Rafish sureties thereon. The undertaking is set out ■ in haec verba, and contains three distinct obligations: The first in the form of the usual undertaking on appeal in the sum of $300, and conditioned to pay the costs awarded upon an affirmance of the judgment or a dismissal of the appeals; the second in the form of an undertaking on supersedeas to stay the judgment for costs in the district court and in double the amount thereof; and the third, the one upon which recovery is sought in this action. This last is as follows: “And whereas the appellant is desirous of staying the execution of the said judgment so appealed from, in so far as it relates to the delivery of the possession of the said personal property, we further, in consideration thereof, and of the premises, jointly and severally undertake and promise and do acknowledge ourselves further jointly and severally bound in the further sum of seventeen hundred dollars (being the amount for that purpose fixed by the judge of this court) to the effect that the appellants and each of them will obey the order of the appellate court upon the appeals or either of them herein.’s It is then alleged:

“(4) On the eleventh day of June, 1909, at the June term, A. D. 1909, said appeal was argued in the said supreme court, and on the seventeenth day of June, 1909, the said supreme court affirmed the judgment of the district court made and entered on the eleventh day of March, 1908, as aforesaid, declaring the plaintiff to be the owner of and entitled to the possession of said personal property.

“ (5) On the seventh day of July, 1909, the remittitur of said supreme court was received and filed in the office of the clerk of said district court, and thereafter plaintiff served and filed upon Girson and Neer her claim for costs incurred on said appeal in the sum of $16.55, to which no objection was filed by said Girson and Neer within the time allowed by law.

“(6) That said Girson and Neer, nor either of them, have returned or offered to return said property.

“(7) That on the tenth day of August, 1909, an execution was issued to the sheriff of said county on said judgment against said Girson and Neer, and returned wholly unsatisfied on the twenty-first day of August, 1909.

“(8) That the defendants Rafish and Fried have paid the costs of the supreme court and of the district court, to-wit, $45.55. That they have not paid the principal sum of $850, nor any part thereof, nor the interest due thereon, nor returned the said property to plaintiff, nor has plaintiff now the said property.

“ (9) That plaintiff has sustained damages in the premises in the sum of $850, together with interest at the legal rate from the eighth day of December, 1908.”

The answer of the defendants Fried and Rafish admits all the allegations of the complaint, except that a return, or an offer to return, the property has not been made to plaintiff, and that execution has been issued against defendants Girson and Neer, and returned wholly unsatisfied. The answer of defendant Neer is substantially a copy of that of Fried and Rafish. Girson did not appear in the action. The trial court granted a nonsuit on the ground that the complaint does not state facts sufficient to constitute a cause of action. In our view the ruling was erroneous.

It is alleged that the undertaking was given by the defendants to procure a stay of execution; that the judgment of the district court was affirmed; that the property has not been returned; that an execution has been issued and returned wholly unsatisfied ; and that no part of the sum of $850, the value of the property, has been paid. If in stating his cause of action the plaintiff shows a right in himself, a corresponding duty owed to him by the defendant concerning this right, and a breach of this duty by the defendant, the statement of a cause of action is complete. The allegations contained in the complaint are sufficient to meet this requirement.

The section of the statute under which the undertaking was given is the following: “Sec.'7103. [Revised Codes.] If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order cannot be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court, or a judge thereof, may direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal.” It is not specifically alleged that the amount of the undertaking was fixed by the court, but the instrument is set forth in full and contains a recital that such was the fact. This renders the complaint indefinite in this particular, but we think it is sufficient to withstand attack by general demurrer. Under the provisions of the statute the filing of the undertaking after the amount has been fixed by the court for that purpose operates ipso facto to stay execution, and that it was stayed need not be specifically alleged.

It is said by counsel for respondents'that the judgment should be affirmed, for the reason that the sureties undertook only to obey the order of the appellate court, and, that since no order was made other than that affirming the judgment of the district court, it does not appear that there has been a breach of the undertaking. There is no merit in this contention. The obligation assumed by the sureties as the statute provides was that the appellants in the ease of Sullivan v. Girson et al. should obey the order of the appellate court. The affirmance of the judgment was a direction to the district court to execute the judgment it had theretofore rendered. This was tantamount to an order by this court directing the appellants to submit to and satisfy the judgment, either by delivering up the property or paying the value of it. Any other view would defeat the purpose of the statute, viz., that the respondent, in case execution is stayed, shall have the assurance that at the end of the litigation he may have satisfaction of his judgment, if not by the appellant, then by those by whose intervention the judgment was stayed.

The further contention is made that the undertaking is too indefinite and uncertain to furnish a basis of recovery, because it contains no sufficient description, by way of introductory recital, to identify the judgment. This contention is without merit. The reference in the undertaking is to “said judgment so appealed from.” The statute (Revised Codes, sec. 7107) declares that the “undertakings prescribed in the foregoing sections may be in one instrument or several, at the option of the appellant.” Clearly, the purpose of this provision is to enable an appellant to have one set of sureties execute one instrument instead of •several, and to make the merely formal parts of one of the obligations assumed by them answer for all, and thus relieve him of the necessity of writing out each instrument in full. The appropriate reference to the description of the subject matter set out as an introduction to the first undertaking is sufficient for all purposes.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Mr. Justice Smith and Mr. Justice Holloway concur.