§ 288. Failure to comply with statutory requirements as to appeal bonds. Specific statutory provisions exist in the various states as to the form of the appeal bond, as for example that the appellee shall be named as obligee therein; that a certain number of sureties shall sign; or that the approval of certain officials must be given. Bonds intended to comply with statutory requirements, though departing therefrom materially, if supported by consideration, and if not violative of law or contrary to public policy, may be enforced as common law obligations. Failure of an appellant to provide a bond in the form or manner required by the statute, does not vacate or stay the judgment appealed from," although a bond good at common law is executed. But if the appeal is not perfected, there being no legal obstacle to issuance of an execution by the trial court, the bond given is without consideration, and void.9 Insufficiency of the undertaking required affords sufficient reason for dismissing the appeal.10 § 289. Breach of the appeal bond. A bond given where no appeal will lie, and no supersedeas is allowed, creates no liability upon the obligors.11 The affirmance of a judgment against one defendant, and a reversal as to another, does not relieve a surety on a joint and several bond, though the principal released by the reversal of the judgment is no longer liable on the bond.18 Nor will a slight modification of the judgment appealed from, such as denying a single item of recovery, affect the sureties.18 The purpose of a supersedeas bond is to secure the payment of the 6 Babcock v. Carter et al. (1898) 117 Ala. 575, 23 So. 487, 488, 67 A. S. R. 193; Goodwin et al. v. Bunzl et al. (1886) 102 N. Y. 224, 6 N. E. 399. 7 Widow and Heirs of Beiard v. Russ (1880) 32 La. Ann. 304. 8McGinnis et al. v. McGinnis et al. (1922) 225 Ill. App. 340, 342; Fogel v. Dussault et al. (1886) 141 Mass. 154, 7 N. E. 17, 21. 9 Pace Grocery Co. v. Savage et al. (1908) Tex. Ct. Civ. App. 114 S. W. 866. 10 Scott, Sheriff v. Milton et al. (1890) 26 Fla. 52, 7 So. 32. 11 Steele et al. v. Crider et al. (1894) 61 Fed. 484; Pierson v. Republic Casualty Co. (1924) Ind. App. 142 N. E. 722. 12 Probst v. Massachusetts Bonding & Insurance Co. (1925) 230 Mich. 543, 202 N. W. 974; Wise et al. v. Cobb et al. (1924) 135 Miss. 673, 100 So. 189. 18The surety is the cause of the suspension of appellee's right to enforce his judgment, at a time, often, judgment from which appeal is taken, and if any portion of the judgment is sustained by the appellate court, the sureties become liable for its satisfaction.14 An increase in the amount of the judgment by the appellate court, allowed under statute, binds the surety for its payment. 15 The voluntary dismissal of the appeal is a breach of the condition that the principals "shall prosecute their appeal with due diligence to a decision."'16 The same is true if the appellate court dismisses the appeal for want of prosecution, where under the practice, such dismissal operates as an affirmance of the judgment of the trial court.17 But dismissal for want of the jurisdiction of the court to hear the appeal, though made on motion of the appellee, does not have the effect of affirming the judgment, as it would if the court possessed jurisdiction. Dismissal for want of jurisdiction is a refusal to affirm or reverse, and is no determination of the merits of the proceedings. The sureties on an appeal bond thus dismissed, are not liable.18 In the absence of fraud, judgment against the appellant, even if he stipulated that it should be entered, is a breach of the condition of the undertaking.19 when it could be enforced. If the slightest modification of the judg. ment on appeal is to be deemed to discharge the surety, then the giving of a supersedeas bond affords no protection to the appellee in most cases. On the other hand, if the judgment of the district court be affirmed in principle, it should be held to be affirmed within the meaning of the statute and bond, notwithstanding some slight modification. In this way, the ends of justice are promoted, and the purposes of the bond, and the intention of the parties, are accomplished. . Of course, the obligation of the v. Orr et al. (1888) 124 U. 8. 510, 8 Sup. Ct. 590, 31 L. Ed. 523; Harding et al. v. Kuessner (1898) 172 Ill. 125, 49 N. E. 1001. 14 Denton Milling Co. v. Blewett (1923) Texas Civ. App. 254 S. W. 236, 240. 15 Hare v. Marsh et al. (1884) 61 Wis. 435, 21 N. W. 267, 50 Am. Rep. 141. 16 Hughes v. Keith et al. (1924) Mo. Ct. App. 267 S. W. 38. 17 Shannon v. Dodge et al. (1893) 18 Colo. 164, 32 Pac. 61. See "Liability of Surety When Appeal Is Abandoned" in (1923) 32 Yale Law Journal 741. 18 Jones v. Jones (1921) 223 Ill. App. 214. The surety's liability is inchoate until there is a judgment against his principal. If the final disposition becomes impossible, no recovery can be had against the surety; for without a final judgment against the principal or his representative, none can be had against the surety.20 § 290. Meaning of damages. The form of the bond usually provides for payment of the costs and "just damages for delay." Statutes prescribing the contents of bonds will be found to contain similar language. What is meant by "damages"? In the King's Bench, the damages for delay included the interest on the sum recovered below from the day of signing the final judgment to the time of affirmance. In the Exchequer Chamber, the allowance of interest was a matter of discretion. In the House of Lords, the same discretion was exercised, and costs depended upon the reasonableness or unreasonableness of litigating the judgment of the court below.21 In general, the American courts seem to have followed the same view, though statutes have affected the practice. The kind of judgment will alter the situation. If the judgment appealed from be for the possession of real estate and damages for its detention, and it is affirmed, the sureties on the appeal bond are liable for the money judgment, and also the rental value of the realty pending appeal, in an amount not exceeding the penalty of the bond.22 There is a difference, however, between a judgment giving possession to the plaintiff in ejectment and a 20 Planters' & Miners' Bank v. Hudgins (1889) 84 Ga. 108, 10 S. E. 501. 21 Tidd's Practice (1856, 4th Am. Ed.) Vol. 2, pp. 1182-1185. 22 Opp v. Ward et al. (1890) 125 Ind. 241, 24 N. E. 974, 976, 21 A. S. R. 220; In re Gleeson's Estate (1899) 192 Pa. 279, 43 Atl. 1032, 73 A. S. R. 808; State ex rel. Imperial Colliery Co. v. Whitt et al. (1925) W. Va. 129 S. E. 764. Apparently contra seems McDonald v. Norris et al. (1924) 29 N. M. 240, 222 Pac. 902, 903, in which the court said: "It is true that the judgment also awarded possession of the premises, and the reasonable rental value thereof was $100 per month, but the sureties did not undertake to satisfy the amount of the rental by the terms of their bond. In order to hold that they did, this court would be compelled to make a new contract for the parties, which, of course, is inadmissible. We would have to say that we will insert into this bond an undertaking on the part of the sureties to satisfy any damages which the appellant might suffer pending the former appeal by rea decree ordering a sale under foreclosure of a mortgage. In the latter case, it is the land which is security, and not rents or profits. The foreclosure is for the purpose of selling the land, and the defendant has a period within which to redeem. Until the final sale, the mortgagor under the lien theory, is entitled to the rents and profits. Therefore, the appeal bond is not responsible for rents and profits, or delay in effecting the sale because of the appeal; nor, will the sureties be liable for the discharge of the original judgment unless they have undertaken to pay it.23 There is a distinction between an appeal from a decree ordering a sale under foreclosure, and a decree confirming a sale. In the latter case, "damage" in an appeal bond given to review the order confirming a sale under mortgage foreclosure, includes rents and profits during the pendency of the appeal, since the land by the judgment which was affirmed, equitably belonged to the purchaser.24 The liability of those on the bond for the payment of the judgment may be affected differently in proceedings in rem than those in personam.25 son of being kept out of the possession of the premises. The sureties made no such undertaking." It must be noted that the bond in the above case agreed to pay the judgment appealed from and costs, but there was no mention of damages. 28 Omaha Hotel Co. et al. V. Kountze et al. (1883) 107 U. S. 878, 2 Sup. Ct. 911, 27 L. Ed. 609; Burgess v. Doble et al. (1889) 149 Mass. 256, 21 N. E. 438. 24 Woodworth V. Northwestern Mutual Life Insurance Co. (1902) 185 U. S. 354, 22 Sup. Ct. 676, 46 L. Ed. 945. 25 Graham v. Swigert (1851) 12 B. Mon. (Ky.) 522, 529; Kelly v. Gaukler et al. (1911) 164 Mich. 519, 129 N. W. 703. It was said in the opinion in Louder v. Hunter et al. (1913) 32 S. Dak. 108, 142 N. W. 251, 252, this class of cases that the super- If the appeal be by the defendant from a money judgment which is affirmed, damages will consist of interest at the statutory rate from the date of the rendition of the judgment below to the date of its affirmance.26 It seems that if there is no statutory authority permitting, or if the language of the bond does not specifically contemplate attorney fees, none will be assessed as damages.27 § 291. Successive appeals. Sureties on an appeal bond are not relieved by another appeal to a higher court, with other sureties on the new appeal bond. In an opinion by the United States Supreme Court, the rule was stated to be: "Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties become liable if the judgment is affirmed in the superior court; nor are they discharged in case the judgment of the superior court is removed into a higher court for re-examination and a new bond is given to prosecute the second appeal, if the judgment is affirmed in the court of last resort. Nothing will discharge the sureties given to prosecute the appeal from the court of original jurisdiction, but the reversal of the judgment in some court having jurisdiction to correct the alleged error." 28 Upon the affirmance of a judgment for him, the obligee may recover from the sureties on the last bond for any damage caused by the appeal, and if there is a deficiency, the obligors on the effect may be and sometimes is done where the original indebtedness is the result of the personal obligation of appellant; that in such cases the appellant is not interested, connected with, nor liable for the original indebtedness, excepting in so far as it may affect the title, possession, or value of the specific property which is the subject of the action in which the appeal is taken.'' 26 Mason et al. v. Smith & Harris (1883) 11 Lea (Tenn.) 67, 72. For recovery on appeal bonds in general, see notes and cases cited in 38 A. S. R. 702-719. 27 Milwaukee Corrugating Co. v. Flagge et al. (1923) 180 Wis. 274, 193 N. W. 69. 28 Babbitt, Assignee v. Shields et al. (1879) 101 U. S. 7, 25 L. Ed. 820, 821. Accord: Becker v. People (1896) 164 Ill. 267, 45 N. E. 500. See apparently contra Nofsinger et al. v. Hartnett (1884) 84 Mo. 549, though a distinction is pointed out as a basis for a different conclusion. |