Commonwealth Ex Rel. Brown v. Fidelity & Deposit Co.

James A. McCullough, Sarah J. McCullough, and Martha E. Taylor were tenants in common of certain real property in Philadelphia prior to May 11, 1911. John Wilson Brown, Jr., the appellant, was a judgment creditor of the said James A. McCullough, whose interest in said property was conveyed to one Samuel Dotlow. The property was subject to certain liens for taxes and other public charges levied by the City of Philadelphia, which were paid in full out of the proceeds of sale of Dotlow's interest under an execution issued on Brown's judgment, and thus the entire amount of these liens were paid by Brown, who filed a bill in the Court of Common Pleas No. 3 of the County of Philadelphia on May 13, 1911, claiming the right to be subrogated to the city's claims and liens to the extent of the amount that should have been contributed thereto by the said Sarah J. McCullough and Martha E. Taylor. On July 3, 1914, the Philadelphia court entered a decree in personam against each of the defendants in favor of Brown for the sum of $1,006.37 and interest from May 13th, 1911, the date of the distribution by the sheriff of Philadelphia County of the fund realized by the sale of the one-third interest of Samuel Dotlow in said property; and also in rem against the respective interests of said defendants for $1,006.37 each, with interest as aforesaid. From this decree an appeal was taken to the Superior Court, and the appeal bonds filed on that appeal by each of the defendants were the subjects of the suit in the present case, appellee being the surety on each of said bonds.

The condition of each was,

"that if the said appellant shall prosecute the appeal with effect and shall pay the amount finally adjudged to be due upon such order, judgment or decree, including interest and costs, and shall pay all costs and damages awarded by the Appellate Court, or legally chargeable against said appellant, and shall pay all damages for injuries suffered by appellees from the time of the decree entered and all mesne profits accruing after judgment, if any, then the above obligation to be void, or else to remain in full force and virtue."

This condition is not binding in so far as it exceeds the requirement of the Pennsylvania statute (Act of May 19th, 1897, P.L. 67), section 6 of which is as follows:

"An appeal from an order, judgment or decree directing the payment of money shall operate as a supersedeas if the appellant give bond with sufficient surety or sureties in double the amount of said judgment, order or decree, and all costs accrued or likely to accrue, conditioned that the appeal be prosecuted with effect, and that the appellant will pay all costs and damages awarded by the Appellate Court or legally chargeable against him."

The Superior Court reversed the Court of Common Pleas as to the decree in personam against the defendants, holding that it had no power to enter such a decree; confirmed the decree against the property, and required appellee to pay the costs of the appeal. Whereupon suit was brought in the Baltimore City Court by The Commonwealth of Pennsylvania for the use of John Wilson Brown, Jr., against The Fidelity and Deposit Company of Maryland, the surety on said bonds.

Several questions of interest and importance were ably discussed by counsel on both sides, but only one is involved in the single bill of exception appearing in the record. This exception is to the refusal by the trial court of plaintiff's three prayers.

The Reporter is requested to set out these prayers in his report of the case.

Each of these prayers asks for an instructed verdict in favor of the plaintiff for the full amounts of the decrees in rem, with interest from May 11, 1911. We find no error in their rejection by the trial court. We are referred to no decision of the Supreme Court of Pennsylvania, and have found none, holding that in a suit on such a bond the measure of damages is the amount of the judgment or decree entered by the appellate court.

Plaintiff's first prayer was based on this theory. Appellant relies upon the case of Commonwealth v. Harvey, 51 P.L.J. 380 (cited in Pepper Lewis' Digest, 1910 Ed., vol. 1, p. 307, sec. 34), in which it is said, in reference to this act, "The word ``damages' includes the debt and every other liquidated sum which by judgment or decree of the Supreme Court is awarded against the appellant."

But whatever may have been the application of the statute made to the facts of that case, it is not a decision of an appellate court, and does not fix the law of Pennsylvania, and the record does not show that any evidence was offered as to what the law of Pennsylvania is on this point. See Peter v.Peter, 136 Md. 157.

In the absence of proof of the law of another state, it will be presumed to be the same as the law of this State, in any controversy in the courts of this State involving the construction of a contract made in such other state.

The law of Maryland is well established as to the proper measure of damages. It is any loss that may have been suffered by the appellee, within the condition of the bond, occurring pending the appeal and reasonably growing out of the same; in other words, losses occurring by reason of the delay.

It was distinctly held in Jenkins v. Hay, 28 Md. 547, at p. 562, that when the decree is in rem the obligors are not bound on affirmance to pay the debt. See also Keen v. Whittington,40 Md. 489; Woods v. Fulton, 2 H. G. 71.

Plaintiff's second prayer clearly violates the Maryland rule by allowing recovery for depreciation in value prior to the date of the appeal.

His third prayer erroneously puts the burden of proof upon the defendant to show that the aggregate value of the right and interest of Miss McCullough and Miss Taylor in said property is less than the amount decreed to be paid thereon. The burden was upon the plaintiff to show that he was injured by the delay growing out of the appeal and the amount of such injury.

Appellee urges a reversal without a new trial on the ground that the learned judge below erred in refusing to grant its prayer for an instructed verdict in favor of the defendant.

It does not clearly appear from the record that this prayer was reoffered at the conclusion of all the testimony. Assuming, however, that it was, there was no cross-appeal by the defendant, which appears to have acquiesced in the judgment of the court. It is therefore unnecessary to pass on the refusal of the trial court to grant this prayer.

Judgment affirmed, with costs to appellee.