Opinion
No. 36477.
September 22, 1947. ON MOTION.
1. APPEAL AND ERROR.
All appellees should be named as obligees in appeal bond and bond reciting that appellant was bound to named appellee and others without naming the others was insufficient (Code 1942, sec. 1162).
2. APPEAL AND ERROR.
Appeal bond in the amount of only $100 was insufficient, though appellant did not desire a supersedeas, where appellant had not prepaid the cost of the transcript (Code 1942, sec. 1162).
3. APPEAL AND ERROR.
Surety against whom decree appealed from was rendered along with its principal could not act as surety on appeal bond though it was a corporate and not a personal surety.
4. APPEAL AND ERROR.
Where appeal bond was defective in that it did not name all appellees as obligees, was in an insufficient amount and was executed by surety against whom decree appealed from was rendered along with appellant, appeal would be dismissed unless proper appeal bond was filed within 30 days (Code 1942, sec. 1162).
ON MERITS. (Division B. Nov. 10, 1947.) [32 So.2d 566. No. 36477.]1. APPEAL AND ERROR.
Where appeal was dismissed because appeal bond was not conditioned according to law, was not in penalty required by law and surety was not qualified to act as such because it was a party to the judgment below, new appeal bond filed complying only with the first two conditions was insufficient and dismissal of appeal was required.
2. APPEAL AND ERROR.
Where judgment was rendered on a bond against the principal and surety thereon, the surety became a party to the judgment and on appeal could not again act as surety on the appeal bond.
3. APPEAL AND ERROR.
Where surety was granted 30 days within which to file a proper appeal bond and failed to do so, it could not avoid dismissal by paying the costs in the court below and seeking to introduce in the appellate court for the first time original evidence of such fact.
4. APPEAL AND ERROR.
Papers filed in trial court after its adjournment are not part of record and cannot be looked to by Supreme Court.
5. APPEAL AND ERROR.
Supreme Court takes case on appeal as it comes in the record and receives no new evidence.
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Wm. Harold Cox, Wells, Wells, Newman Thomas, and Wm. N. Ethridge, Jr., all of Jackson, for appellees, on motion to dismiss.
The appellant, W.T. Williams, has filed an appeal bond herein for costs wherein these appellees are not expressly named, and the penalty of said bond is only the sum of $100, while the cost of the transcript does not appear to have been prepaid, and United States Fidelity and Guaranty Company appears as one of the sureties thereon, while said surety was a surety on appellant's costs bond in the trial court, and a decree for costs was entered against it in the lower court in this case and it is not therefore a competent surety on this appeal. Wherefore, movants now move the Court to dismiss this appeal unless the appellant shall, within a time allotted by this Court, file a new bond herein, conditioned and in the penalty required by statute with the necessary and proper sureties thereon.
Jayne v. Nash Lumber Co., 108 Miss. 449, 66 So. 813; Code of 1930, Sec. 28.
B.D. Wade, of Jackson, for appellant, on motion to dismiss.
The appellant submits that it is within the wide discretion of this Court to require him to specifically name the payees in the appeal bond that has been filed and approved by the clerk of the lower court, and which was signed by a surety company, authorized to do business in the State of Mississippi, to-wit: United States Fidelity Guaranty Company of Baltimore, Maryland. The order of the lower court did not specify any certain amount of bond that was required before the appeal would be perfected. Without further comment, appellant submits that the appeal bond now on file is sufficient to pay all costs of the lower court and the appeal cost. Martin Liftin, Bessie Margolin, Wm. S. Tyson, and Frederick U. Reel, all of Washington, D.C., and James W. Price, of Birmingham, Ala., amici curiae.
Argued orally by James W. Price and B.D. Wade, for appellant, and Wm. N. Ethridge, Jr., and Wm. Harold Cox, for appellees.
This cause, appealed from the Chancery Court of Hinds County, is before us on appellee's motion "to dismiss this appeal unless the appellants shall, within a time allotted by this court, file a new bond herein, conditioned and in the proper penalty required by statute with the necessary and proper sureties thereon."
The pertinent part of the bond is as follows: "Know all men by these presents, that we, W.T. Williams, as principal, and U.S. Fidelity Guaranty Company and B.D. Wade, as sureties, residents of the State, are held and firmly bound unto J.E. Walton Son, and others, in the penal sum of one hundred ($100.00) dollars for which payment well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators, (and successors) (a), forever. The condition of the foregoing obligation is such, that whereas, in the Chancery Court of Hinds County, a judgment (or decree) was rendered against complainants and in favor of defendants at the May 1946 term of said court on the day of June 1946, and the said complainant feeling aggrieved by said judgment (or decree) has prayed and obtained an appeal to the Supreme Court. Now if the said W.T. Williams (1) shall prosecute his appeal with effect and (2) shall pay all costs, if the same be affirmed, then this obligation to be void; otherwise to remain in full force and effect."
The final decree of the Chancery Court, among other provisions, contains the following: "It is, therefore, so ordered, adjudged and decreed by the Court that the complainant W.T. Williams do have and recover nothing of and from the defendants, Lee Irby, doing business as `Lee Irby Supply Company,' R.C. Roberts (called `Charlie' Roberts), doing business as `Robert's Grocery and Market,' Albert Dickson and Will Terry, doing business as `The Brand Mule Market,' J.E. Walton, doing business as `J.E. Walton Son,' and Luther A. Smith, doing business as `Justice Smith,' and said Bill of Complaint herein is now finally dismissed with prejudice; and the complainant, W.T. Williams, and his surety, United States Fidelity and Guaranty Company, are assessed with all costs of this suit to be taxed by the clerk of this court and for all of which proper process may issue."
It will be noted from the decree that the appellees were defendants in the trial court, and hence should be named as obligees in the appeal bond, according to the language of the statute, "it shall be sufficient if the appellant give bond to the opposite party." Section 1162, Code 1942. The bond merely recites that appellants "are held and firmly bound unto J.E. Walton Son and others." This is not sufficient. The "others" should be named.
The statute further provides that "Where the appellant shall not desire a supersedeas, it shall be sufficient if the appellant give bond 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 the penalty of five hundred dollars conditioned for the payment of all the costs of appeal in case the judgment or decree be affirmed as to such appellant." Here the amount of the bond is for only $100, which would have been sufficient, if, as permitted by the statute, appellant had prepaid the cost of the transcript. This was not done.
The decree of the chancery court was also against appellant's surety, United States Fidelity Guaranty Company, which same company is surety on the appeal bond. This practice, permitting a surety against whom judgment was rendered in the lower court along with its principal there, to be surety upon the appeal to this Court, we have condemned in Jayne v. W.B. Nash Lumber Company, 108 Miss. 449, 66 So. 813. It is true that the sureties were personal there and corporate here, but the announcement of the rule expresses no discrimination between the two classes of sureties, and we do not feel that we should do so here.
The motion will be and is sustained, and the cause will be dismissed, unless appellant shall execute a proper appeal bond, consonant with our views above stated, within thirty days. Lovett v. Harrison, 162 Miss. 814, 137 So. 471; Purity Ice Cream Company v. Morton, 157 Miss. 728, 127 So. 276; Thorsen v. Illinois Cent. R.R. Company, 112 Miss. 139, 72 So. 879.
So ordered.
We sustained a motion to dismiss the appeal in this case, 32 So.2d 131, 132, because the appeal bond was not conditioned according to law, was not in the penalty required by law, and the surety thereon was not qualified to act as such surety on this appeal, because it was a party to the judgment in the trial court.
However, instead of at once finally dismissing the appeal, we gave appellant another chance to maintain it here, by allowing him the right to file a new appeal bond, free from all three of the objections. On October 22, 1947, appellant filed a new appeal bond, but complying with only two of the conditions laid down in our opinion. He also filed here, for the first time, a certified bill for costs in the trial court, marked paid October 22, 1947, long after adjournment of the lower court, and forming no part of the appeal record.
He failed to obey the order of this Court as to the third condition, supra. The final decree of the Chancery Court dismissed appellant's bill with prejudice, and entered judgment also that: "the complainant, W.T. Williams, and his surety . . . are assessed with all costs of this suit to be taxed by the clerk of this court and for all of which proper process may issue."
In our original opinion herein, granting appellant thirty days within which to comply therewith, we plainly and clearly said: "The decree of the chancery court was also against appellant's surety, . . . which same company is surety on the appeal bond. This practice, permitting a surety against whom judgment was rendered in the lower court along with its principal there, . . . we have condemned in Jayne v. W.B. Nash Lumber Company, 108 Miss. 449, 66 So. 813. It is true that the sureties were personal there and corporate here, but the announcement of the rule expresses no discrimination between the two classes of sureties, and we do not feel that we should do so here." The cited volume of our reports contained decisions of this Court in 1916, thirty-one years ago. It is, therefore, not a new rule presently declared by us for the first time.
In the case cited, we approved and adopted this statement of the rule in 1 Enc. Plead. Prac. 1004 [ 108 Miss. 449, 66 So. 814]: "Where a judgment is rendered on a bond against a principal and his sureties thereon, the sureties become parties to the judgment, and on appeal therefrom they cannot again act as sureties on the appeal bond. It is otherwise where the judgment is rendered only against the principal."
This is the rule adopted by this Court as stated, and as shown, is supported by general authority. The Supreme Court of Washington had before it the identical question here, and also held that where the surety on an appeal bond is a party against whom judgment was rendered, though it be a surety company, the bond is in effect without surety, and hence does not comply with the statute requiring sureties, and the appeal must be dismissed. Smith v. Beard et al., 21 Wn. 204, 57 P. 796.
It was the duty of the appellant to comply with this long-established rule, and especially so, after we granted him thirty days within which to do so, on pain of the dismissal of his appeal. He could do nothing else. He could not thereafter avoid the rule after such an order of this court, or evade it afterward by paying the costs in the court below and seeking to introduce here, for the first time, original evidence of such fact. We held in a recent case that papers filed in a trial court, after its adjournment, were not part of the record and could not be looked to by the Supreme Court. Superior Oil Company v. Smith, 200 Miss. 782, 29 So.2d 114. Certainly, no such proof can be made or considered for the first time here. As said by the Supreme Court of the United States in Pacific R. Company v. Ketchum, 101 U.S. 289, 25 L.Ed. 932, "We take a case on appeal as it comes to us in the record, and receive no new evidence." See Harvey v. Briggs, 68 Miss. 60, 8 So. 274, 10 L.R.A. 62, where we said that a certified copy of a record filed here for the first time would be ignored. We have no alternative except to dismiss the appeal, and it is so ordered.
Appeal dismissed.