/44 CASES IN THE SUPREME COURT airrste meg, ty . 1838. •■■■■00.11.0 ASHLEY oe.
BRASIL
Cann= Arenzv against BaAsu. and Utiliser, Erma. and lammaT. APPEAL from Pulaski • Circuit Court. The Superior Court of the Territory of Arkansas, bad appellate jurisdiction only in cases in which the amount in controversy was one hundred dollars or uPwards. An appeal taken to the Supreme Court, in a case in which that Court has no .. jurisdiction, is a nullity, and the recognizance of the appellant in the Court --.. - . . . . . . below to prosecute his appeal is void. The appellees sustain no injury by i. a non-compliance with its conditions, and no action lies upon it. A dismitsal of an appeal "for want of prosecution," is not a confirmation of ..li the judgment below. The appellant may still have his writ of error and .... 0 . supersedeas. The 'dismissal of the appeal merely places the parties in the 0 4 same situation as if no appeal had been taken. recognizance . in appeal being conditioned, "that in- cise the judgment bé. f.= e 't cOnfirmed, the ecognizor will pay the debt, damages and costs, ' no breach. i O of the condition accrues oil a dismissal for want of prosecutiOn. 4 In an action of debt on recognizancs, the breaches must be proved as laid in o the Jleclaration. If the plaintiff declare upon an absolute promise, and a O 0 conditional one be . proved;the variance is fatal. The party decliring must prove the allegations according to their legal effect. If Ihe declaration be on a recognizance, conditioned " to pay the debt, damages and costs if the judgment be confirmed," and the breach assigned is-" that the appeal was dismissed for want of prosecution," it is a fatal variance. In such an action, it is error to render judgment by nil dicir for the whole amount of the recognizance. A writ of enquiry should be awarded, to as-. Sew the damages. The appellee in this case recovered judgment before a Just;ce of the Peace, for the sum of ninety-eight dollars, exclusive of interest and costs, against Christian Brumback, Martin Guest, and Alexander S. Walker; and also three judgments, each for the sum of one hundred dollars debt, before the same Justice, against Christian Bruin- - !Nick and Edward Shurlds; in each of which cases the defendants' fore the Justice appealed to the Circuit Court of Pulaski county,. wiltere each appeal was dismissed, and judgment given for the costs ef a.. , ;peal, and that the plaintiffs before the Justice should have the ben etit of their judgment before him, in each case. From these judg,' ments appeals were taken in each case to the Superior Court of the Territory of Arkansas, and the appellant in this case, Chester hsAley; entered into recognizance in each case before the Circuit Court, as required by law; in one ease together with Edward Shurlds, Benjamin Clemens and Kirkwood Dickey, and in the three other cases together with Clemens and Dickey; the recognizance in each being in the sum
OF TEE STATE OF ARKANSAS. 14.5 of twohfindrera dollars, and conditioned that the appellants in each Vila eaie shonld pay the original debt and damages, and all costs that had row. rem) then-accrued, or that might thereafter accrue,, in case the judgments ASHLEr of the -Justice and of the Circuit Court should be confirmed by the Supe- sZu.: rior Court. The first mentioned case was afterwards dismissed from /Id the Superior Court for want of jurisdiction in that court to fry the same; and the other three cases were dismissed, for failure of the appellants therein to prosecute the same. The-appellees in this case then brought their aCtion of debt on said . recognizances in the court below, for eight hundred dollars debt, the; aggregate amount of the recognizances. The declaration can-tains four -counts, each alleging as a breach of the condition of the recognizance 'on which it is founded, the dismissal of the appeal for Awhich the recognizance was taken, and the noir-payment of the debt, daMages and ceLcts in each case. To each count the defendant , below filed his -separate demurrtr, and the plaintifEr below joined in -dernurrer, and each demuner being overruled, the plaintiffs took judg... "went 'by -nil dial for the sum of eight hundred dollars, the debt dr.- 'mended in the declaration. From that judgment the defendant below appealed, and assigned for error the insufficiency of the declare-fion; the overruling of the several demurrers; the variance between the obligation in the condition of each recognizance and'the breach illeged; and the rendition of judgment for the whole amount of the debt claiined. ?, for the appellant: • HALL, Taatint-AL L and Com b The demurrer should have been sustained, because the declaration does not 'allege a breach of the condition of the recognizances. The allegation is that the appeals are dismissed by the Superior Court for • the wantof jurisdiction, and judgment given for costs. The condition upon which Ashley was to be liahle, was that the Superior Court should affinn the judgment of the court below. By dismissing, the wart refused to affirm or reverse, or act upon the merits of the case in any way, and therefore as die 44 Superior Court " did not " affirin the judgment of the court below, of course the appellant was not lief& to the judgment rendered in the action of the 'appellees against The judgment was rendered for the aggregate amount of the penalty in each recognizance; whereasit should have been, if given at all,
146 CASES IN THE SUPREME .COURT LITTLa ROCK, rendered for the debt due the appellees, together with the interest /14,1838. and costs. The obsolete common law principle, of making the pen-ASHLEY b.. alty the debt by, failure to perform the condition, has been too long BRASIL exploded to need a citation of authority, and judgment cannot be and LIRD/381r. rendered upon a penal bond with collateral conditions, except by jury, and the verdict is in damages. Statute of 8, 9, William 3d, Chap. 11, Sec. 8., 7 Monroe, 122, .McGuire v. Trimble. And further: Each of the judgments appealed from was under one hundred dollars, and therefore no appeal by law could be allowed to the Superior Court. See Sec. 59, Page 334, Steele's Digest. And therefore, as the appeal could not be granted, the recognizances are void in law, and no action could be maintained on them. 5 Mass. Rep. .376 Howe's Pr. 447. FOWLER, contra : It is contended by the appellees that this suit was well brought, and judgment regularly rendered against the said Ashley. That the legal effect of dismissing the appeals for want of prosecution, as three of them were, each being from a judgment for more than one hundred dollars, and the court having complete jurisdiction, is the same as though the judgments had been formally confirmed by the court, and the recognizors liable under the law. And the same principle applies to the case which was dismissed for want of jurisdiction. The object of an appeal is to obtain redress for a real or supposed grievance: the, design of the recognizance is to secure the party delayed by the appeal from the benefit of his judgment;—and the failure to prosecute the appeal with effect, by any means or neglect whatever, in law or in fact, operates equally prejudicial to the party delayed, and inflicts the same injury upon him, as though the appellant had pursued hia appeal until it was regularly confirmed against him. The appellant takes the appeal at his peril, and is liable to . all the consequences, whether his appeal be taken without legal authority, dismissed for his neglect, or technically confirmed against him. Such Statutes as those authorizing appeals should be construed so as to give them effect; to protect the rights of the injured, not to countenance frauds. They should be construed according to their intent. The Circuit Court, therefore, very properly overruled the demurrer to said declaration: each of the four counts setting forth legitimate causes of action, with proper averments and breaches.
OF THE STATE OF ARKANSAS. 147 Judgment nil dicit was rendered for the whole amount of the re-LITTLE coc mizances: Bail bonds and recognizances do not come under the BOCK. July, 1838. Statutes, requiring the assignment of breaches •and assessment of damages by a jury on penal bonds. See 1 Tidd's Pr. 511 et seq--2 ASE Bos. 4, Pull. 446. The appellant had no cause of complaint, nor could have any, on 1.1 1:1:: that account, until the said appellees were to attempt to coerce the collection of the" whole sum. The execution would properly have issued for the whole sum, with an endorsement that it would be satisfied by the payment of the aggregate sum of the several debts, damages, and costs. But even upon the supposition that ;a judgment for the s entire sum of eight hundred dollars is irregular, and that a writ of inquiry should have been awarded to assess damages; still who could contend that the judgment nil dicit was irwroperly rendered? The plaintiff in the Circuit Court was surely_entitled th this. All, then, that the appellant could possibly obtain from "the Court, would be a reversal of the latter part of the judgment—that part which is final—leaving the judgment nil dicit to stand, with directions for a writ of enquiry to be awarded to assess the damages on breaches assigned. A judgment may be reversed in part, and confirmed as to the residue. LACY, Judge, delivered the opinion of the court: This was an action of debt instituted by the -appellees . against the appellant on four several recognizances in the Pulaski Circuit Court. The declaration contains four counts, and there is: a demurrer and issue put in to each count. The court below overruled the demurrer, and judgment by nil dicit was had against the defendant for the full amount of the several recognizances. To reverse that judgment, he appealed to this court, and assigned for error, first, that the plaintiff's declaration is insufficient, and that the demurrer to each of the counts ought to have been sustained; secondly, that judgment is given upon nil dicit for the whole amount of the recognizances, when, if the defendant was liable at all, it could only be to the extent of the injury sustained, and a writ of enquiry should have been awarded to assess the damages. Before the court proceed to determine these questions, it is necessary to state the facts of the case. The appellees recovered four several judgments at law against
1418 MRS EN TER SUPREME COlIFIrr -16/1131a T C1ir n Rrasthaalk„.lifartin Guest4, L!, demo:der S. Walker, before ,;tf .1 1 13111. a Jaloiie of the Peace. qr.., these judgments, the defitsdants op- .kansinn pealed to the larcuit Court, and the judgment were there affirmed. Lint&SEL Allofthe judgment are far the value of one hundred dollars,exclusive Eattrassa4 ofinberesit, except orte,, widthi for the sumefainety-eightdollass. • From the judgments rendered hy the Ctscuiteourt fintorof the appellees, dreappellants with Chester Ashley as their surety, together with Ed,- •ward Slrerlds„ Benjardin Clemens, and Kirk-weed Dickey, who were natured in this aC6211, elateredtirds thus: several reartgpizances to pros-ecnte their appeals in the Superior Coast of the Territory of •Ankanscs„ conditioned as the Statute (Erects. The declaration„ in Ensigning the breathes of the recogniz . maces, does net date that the judgments of the China Coast were d reverse& 'The first: count setatbrth,, that the appeal /Stem the je l d " g uite°n r of the Circuiteourthetthe nineliy-eiglit dollars was dismissed far want: of juisdiction in the Superior Court with cost. The act of the Legidature t -approved 3„ t, Ser. 514, and organic frzsr,, Sec."7; Digest page 335 and ZS, regalating appeals &oar the Circuit to the Superior Court, give "appellate jurisdiction only ia. all civil cases in which the amount in contramsy shall lie one hundred dollats or upwards."' The pasty appeaiing mot dams that the court has jurisdiction of the subject matter; mad it is evident, as the =lois net one hundred dollars or upWards, the Superior Court coed D ot rightfully take cognizance of the first appeaL What, then, is the .legel effect of thatrecognizance?. ? Is it binding on the sureties in the appeal! or is it OR and void, es no strei apped could be lawat4 aaw-ed? In the case of The annnanwealtA vs. Messenger, 41ass. Rep. 462; Conspkil vs. Hams* 5 Mass. Rep 376; and masses? vs. Altman et al. the Court expressly decided this pint. The appeal is declared to be a mere =HEW, and the recognizance of the appellant. , int the court below to prosecute his appeal, held to be void, and that e appellees can sustain nit injury by a Eig ure ta comply with its conditions. "The party obtaining the judgment, may," says Chiefliartice Parsons, "me out execution upon it, or main t. -0 an action of debt • 'upon it, far the judgment remains in fall three s ; and fume a legal "consideration." On this point the court have no tufty in coming ton ankle-site. The second, third and fourth counts of the declaration allege that
lattlh, STATE, OF ABIEANZAkt. 11 0 the appeal on the three recriaT sl a : ng rrizeneeaffar one bandeed dO1 lae1 ri41 tars were dismissed kir wane of pinusetation, hv the Superior Caurte rat-rem& andl jjectement (metered ui each case hr costs. awe= • • The Superior Courtkomquesth tabby had juriSdlectiort Of the view*, gi r.Zairr„ -air each is kw one handlrted dollars, eraidl thatsun is sufficient to give to and . g te party uig , i tItt off appeal. The appeals wesethen properly granted •hy liee Circuit Comte and the only questien far as to determine, is the liability of the securities; tiro the reeognieances, The. enquiry,, then, tnettually arises„ does the dleelaratiors contain a good came of actin% or are the breaches peopeelly . assigeed1 7 2. ht truest he admitted 40 at c, if the recogliehrinces aue goo& the'eleclaraftion must he sufficient; for it sets oat the only cause of :Teti= the plaintiffi hmee„ which is„ thst there was a judgmentof the Superior Caret E ! -lisitiesing teethe& e peak and which is declared to he in firill fOrce and effect. This is au action of deht on • fixer several rem: 0,7 it:, .• , and to an-certain the responsibility of the suedes, we mast see hoar fir they are homd by their conditions. The appelkes have declared that the appeals were dismissed for want of prosecution. But is that one of the conditions or stipulations of the recognimuices? Did they ever. covenant, that the appealS &odd not be &s n e -ee-A far want of prosecute% or that they would pmenmte them with effiert„ or does the legal anisequence flowing from their recogniunnces contain any such provision! •The recognitrences are "lhat in case judgment shall be. confirmed they will pay the debt, damages and cos ,.." Dees the declaration negative the condition„ or declare that the judgments on the appeals . were affirmed or reversed by the Superior Court? There is no such allegation in any of the Counts h. is merely' stated that they were dismissed with costs fier the want of prosecution, hut upon whose motion this order. was entered, does not appear. Thee however i does Mk in our mti-motion materially affect or change the nature of the case. Wasthe ethe Superior Court equivalent to anaffirmation of the judg-menh? Certainly there is a striLing difference between the two propositions. ad the judgments been affirmed, there would have been an end to the cases„ and the condition of the recognizances weed not have been complied with,, and the liability of the present defendant fixed. The Superior Court in dismissing the appeals, placed the par. ties in the mme condition asif no appeal bad been prayed or anowed; and notwithstanding the order,, the appeihnts might still have had a
150 CASES IN THE SUPREME COURT R LI o T c T k LE , wnt of error and supersedeas, if . the fact3 or the law .had justified, %- July. Isss. and brought up the cases, and in this m: - . .nner have had the judgments ASHLEY below affirmed or reversed in the Superior CoUrt. Suppese . the judg-BRASIL ments of the Circuit Court had been reversed, would the sUreties have LINDSEY. still . been liable upon the recOgnizances, in •express contradiction of the Statute, which declaresif the defendant appeals, and ; 46 the judgment shall be reversed, the recognizances shall be null and void." The Statute upon the subject does not leave the appellees without remedy or redress. If the party appealing 'shall fail . or neglect to file with the Clerk a copy of the.record and proceedings on or be.- fore the third day of the next succeeding 'term . bf the Superior Court, " it diall be lawful for the adverse f arty, producing a certificate from the Clerk of the court below, that an appeal has been entered, and a recognizance given, to move the court that the judgments 'stand affirmed." Here, then, the .appellees had it their power, if they wished it, by producing the certificate of the Clerk, to have the judgments appealed from, affirmed. They did nOt choose to do this, but the cases arc dismissed for the want of prosecution. If they have sustained any injury by delay, or in failing to sue out execution on their judgments, it was as much their own fault as that of the appellants. For the neglect or unwillingness of the one to have the causes tried and determined, could have been prevented by the vigilance and attention of the other. Both parties after the appeal is prayed and taken, have legal duties to perform, and if either omit his part, the other can take advantage of the.negligence. Between the writing or obligation sued on and the breaches assigned for the non-performance , of its conditions, there seems to us a manifes: and substantial variance, and one that is fatal to the declaration. It is a universal rule that the breaches must be proved as laid in the 'declaration. Thus, if the plaintiff" declare upon a covenant to repair at all times, and the covenant contains the additional words, " at farthest, within three months after notice," the variance is fatal. So, if the plaintiff declare upon an absolute promise, and a conditional one be proved. Horsefall vs. Ester, .1st . .41.td. 89. Churchill vs. Wilkins, 1st T. R. 47, Sower vs. Winters, 7 Cowp. Rep. 263. The universal rule on the subject is, that the party declaring must proye the allegations according to their legal effect. 3rd Stark. Ev. 564. lf, in an action ot debt 'on recognizance of bail, the recognizance be alleged generally,
OF THE STATE OF ARKANSAS. 151 and It appear from the record . , that it be a recognizance with a condi- L R IT o I m .L t tion annexed, the vari:ince will be fatal. Waid rs. Griffith, 1st Ld. iu!y, 1838. Raynt. 83.. in an action against a s.urety on a bail bond where there AS L H EY is a 'material difference between the bond and breaches assigned, the 131t variance . is fatal. 1 Roll. 554. In the case now under consideration, v,Z6t1. the variance between the recognizances set out in the declaration and ..427rnaly. the breaches assigned, is most manifest. This does not arise, however, from any defect in the manner of the averments, but from the fact that under the judgment of the Superior CoUrt, no other allegation could properly be made. The legality of the recognizances springs from the authority of the act of the Legislature; and to give them a construction that would change or alter their terms or conditions in order to charge the sureties, would be- both unreasonable and unjust. To make them liable, the condition of the recognizance must be violated. Until this appears,. .no catise of action aecrues. The three last counts in the declaration cid not show that the conditions have not been complied with. Dismissal and an affirmation of the appeal, are, in the opinion of the court, two•separate and distinct things, and a . wholly different undertaking. The former by no just or legal inference can be made to in-elude the latter. If this . view of the subject be cOrrect, then the plaintiffs have shown no cause of action, and the detiMrter to the declaration ought to have been sustained. The decision of this qaestion necessarily disposes of the whole case, and it is deenv2d unnecessary to examine at length the second assign-rrirnt of errors. It is obvious, however, that the judgment ought not to have been rendered for the plaintiffs for the whole amount of the recognizances u pon nil dicit. A writ of enuiry should have been awarded to assess the damages. The opinion of the Circuit Court on this point was, therefore, evidently 'erroneous. -The judgment of the court below must be reversed witla costs, and the cause remanded, to be proceeded in agreeably to the cpinion here delivered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.