Johnson v. Hessel

Opinion, Mr. Justice Sterrett: This action is on the defendant’s recognizance in error, taken in this court July 5, 1888, under the following circumstances, substantially as set forth in the plaintiff’s statement of claim, viz.: In May, 1888, in an amicable action of ejectment in the court below, judgment was entered in favor of the present plaintiff against one John P. Rossi ter, on which judgment a habere facias possessionem was forthwith issued. To that writ the sheriff made return “ that he found a portion of the premises in the possession of one Henry Hessel, who claimed by title paramount to ” Rossiter, the defendant in the writ. Notwithstanding Hessel’s affidavit as to his possession under title paramount, etc., the court below ordered the sheriff to proceed with the execution of the habere facias. Hessel then removed the record to this court by writ of error, and, in doing so, be and his sureties gave the recognizance on which this suit was brought. The recognizance is in $1,200, and its condition is that the plaintiff in error “prosecute his writ with effect; and, if the judgment be affirmed, or the writ of error be discontinued or non-prossed, that he pay the debt, damages, and costs adjudged or accrued upon such judgment, and all other damages or costs that may be awarded upon such writ of error,” etc. The judgment or order of the court below to which that writ of error was taken Avas affirmed in February, 1889, and thereupon Hessel abandoned possession of the premises, and, as we understand, returned the record to the court below, and paid all the costs in that as well as in this court. In the court below, there was nothing more than a nominal money judgment, such as is usual in actions of ejectment, viz., judgment that the plaintiff recover possession of the premises, with six cents damages and costs. The affirmance of the judgment and order by this court imposed only the additional burden of costs on the writ of error. This suit was brought, not to recover any of those damages and costs, but to recover damages alleged to have accrued on said judgment or order of the court below by reason of the writ of habere facias having been stayed [321] and superseded by the writ of error. As itemized by the plaintiff, his claim in the aggregate was $1,200. The jury found in his favor, and assessed the damages at $360. On the trial, several points for charge were submitted by the plaintiff, the first of which only was affirmed, and that constitutes the only assignment of error that is presented for our consideration. The point thus affirmed was as follows: 1. “ If the jury believe the evidence on behalf of the plaintiff, he is entitled to recover from the defendants, as damages in this case, the rental value of the premises.....from the date of the judgment in ejectment in the Common Pleas court to the date of the affirmance of said judgment by the Supreme Court, in the suit in which the bond was given upon which this suit was brought.” The result of that instruction was a verdict against the defendants for $360, rental value of the portion of the premises occupied by Hessel, from the date of the judgment in the court below to the date of its affirmance in this court, and, in a very able and ingenious argument, on behalf of the appellee, it has been contended that he was legally entitled thereto. We are of opinion that the instruction complained of was erroneous. There is nothing in the condition of the recognizance that appears to require either of the defendants to pay any such claim in this action. Their undertaking was to pay the debt, damages, and costs adjudged or accrued upon the judgment, and all other damages or costs that may be awarded on the writ of error. The judgment Avas not for the payment of a money debt, but for the possession of the land in controversy. The nominal damages and costs adjudged by the court beloAV, as Avell as the additional costs that accrued in this court, Avere all paid by the defendant Hessel immediately after the affirmance of the judgment. No “ other damages or costs ” were awarded on the writ of error. The judgment of this Court was merely an affirmance of the judgment of the court below. It therefore appears to us that the rental value of the premises, for which alone the recovery was had, is not within either the letter or the spirit of the recognizance. The condition of the recognizance in this case differs materially from that of the appeal bond in Cahall v. Building Ass’n., 74 Ala. 539, cited and relied on by the learned counsel for appellee. In that case the undertaking was to “ pay and satisfy [322] all costs and such damages as the plaintiff may sustain by reason of the appeal.” Construing that condition, the court well said: “The obligors bound themselves, in the event of the affirmance of the judgment, to pay and satisfy the costs of the appeal, and all such damages as were the natural, proximate consequence of the appeal, and its legal incident, the suspension of execution...... The loss of the possession, the value of its use, pending the appeal, is the immediate consequence of the suspension of the execution, for which the plaintiff is entitled to compensation, and if it is not made the condition of the bond, is broken.” But, aside from what has been said as to the condition of the recognizance in suit, we think the instruction complaiued of is contrary to the principle of Warren v. Steer, 118 Pa. 529. In that case, this court, in an opinion by the present Chief Justice, held that the statute of 16 & 17 Car. II., c. 8, is not in force in this state, and that, for the recovery of the rents and profits of lands retained in possession after judgment in ejectment, pending a writ of error resulting in an affirmance of the judgment, the act of June 11, 1879, affords an ample remedy. The principle enunciated in that case, we think, rules the one now before us in favor of appellants. Judgment reversed.