Granger v. Parker

C. Allen, J. The defendants, in various forms, take the objection that the bond declared on is wholly invalid, and that the appeal from the district court should have been completed by a recognizance instead of the bond. They contend that they made the bond under duress, by order of the district court; but offer no evidence of actual duress. They rely on the ground that it should be presumed to have been executed because the district court required it, in order to perfect said appeal. It is conceded that the district court had jurisdiction of the cause and of the parties. The judgment of that court being for the plaintiff, the defendant Parker sought to exercise his right of appeal to the Superior Court, and entered into the bond now in suit, this being the form of security adopted to make the appeal effectual. The defendants now contend that the form of security should have been a recognizance instead of a bond. There is no suggestion that the condition of the bond contains anything which the recognizance ought not to have contained. So far as appears, no question arose as to whether a bond or a recognizance was the proper form of security; the appeal was entered in the Superior Court, and tried there; the decision of the district court was affirmed; exceptions were taken, which were heard and overruled in this court, 137 Mass. 228; and judgment for the" plaintiff was finally entered in the Superior Court, for possession of the premises. The proper parties were before that court; the subject was within its jurisdiction; and the only possible objection to its judgment is, that the defendant Parker did not file the proper form of security to get the cause properly transferred [190] there. Without now considering whether the security should have been by way of a recognizance instead of a bond, we are of opinion that the objection is not now open to the defendants. It might have been taken by the adverse party, or by the court itself, at any time before judgment. Santom v. Ballard, 133 Mass. 464. Henderson v. Benson, 141 Mass. 218. But where the objection to the jurisdiction in a civil action rests simply on the ground that the party appealing did not give security for the prosecution of his appeal in the proper form, but gave a bond instead of a recognizance, where there was no actual requirement to adopt the particular form of a bond, where the conditions of the bond are the same which are prescribed by statute, and it is not apparent that any injury can have resulted from the substitution of a bond in place of a recognizance, where no suggestion of a mistake in this respect was made in the appellate court, but the cause proceeded without any objection or suggestion of mistake to a hearing and final judgment, and where the party appealing thus got the full benefit of his appeal by an' unobstructed and full hearing on the merits in the appellate court, it is not open to him afterwards to question the validity of the judgment on the ground of his own failure to furnish security in the proper form for the prosecution of his appeal. As to him, the judgment stands valid and irreversible. Glazier v. Carpenter, 16 Gray, 385. Commonwealth v. Sullivan, 11 Gray, 203. But if the party himself is not entitled to a reversal of the judgment on a writ of error or review, neither can the sureties avoid it by plea and proof. There is no suggestion of any collusion or fraud on the part of the defendant in improperly submitting to a judgment in order to charge the sureties. The provisions of the bond are no more onerous than those which a recognizance would have contained. The bond contemplates precisely the proceedings which were actually had, and the result which was reached.. The object for which it was given has been fully accomplished. The liability on a bond is no greater than it would have been on a recognizance. Execution is only awarded for so much of the penal sum as is due and payable in equity and good conscience. Pub. Sts. e. 171, § 10. The judgment being valid as against the principal, there is no good ground [191] upon which the sureties can impeach it. Fall River v. Riley, 140 Mass. 488. The difficulty with the argument of the sureties is, that the judgment was valid, and not void. By putting the decision on the ground that the bond is valid at common law, if not as a statutory bond, we do not mean to intimate that a recognizance should have been taken. Exceptions overruled.