Simmons v. Sharp

WALKEB, P. J. But for the fact that it was made payable to the plaintiff in the action in which it was given, instead of to the clerk as prescribed by the statute, (Code, § 2874), the bond sued on would have been a good statutory bond required to supersede the execution of the judgment in that case for the possession of land. The bond having been given to secure the suspension of the execution of the judgment for the possession of land, and — as sufficiently appears from the pleadings and proof in the case — having accomplished that result in accordance with the intention of the obligors, and that result having involved damage to the obligee, and the condition of the bond having been broken, an action may be maintained on it as a common-law obligation, although its execution was not legally entitled to have the effect of superseding the execution of the judgment to which it referred. Leech v. Karthaus, 135 Ala. 369, 33 South. 342; Babcock v. Carter et al., 117 Ala. 575, 23 South. 487, 67 Am. St. Rep. 193; Munter & Faber v. Reese, 61 Ala.; Sewall v. Franklin et al., 2 Port. 493. The only attack upon the rulings of the trial court ■which counsel for the appellants seek to sustain by argu [388] ment or citation of authority is in reference to the question of a consideration to support the bond. Conceding that the question was raised by the pleadings, in the absence of any plea impeaching the consideration of the instrument sued on (Code, § 3966), yet, in view of the facts that the bond was conditioned in the exact terms required by the statute (Code. § 2874) in the case of a bond to be made to the clerk to secure a suspension, pending an appeal, of the execution of a judgment for Lie possession of land, and that by its execution the obligors in fact obtained such suspension of the execution until after the judgment appealed from had been affirmed, there is no room for a plausible claim that there was an absence of a valuable consideration to support the bond, or that the consideration was in any respect in contravention of public policy or offensive to law. Leech v. Karthaus, supra; Miller v. Vaughan, 78 Ala. 323; Jenkins v. Lockhard, Adm’r. 66 Ala. 377. The condition of the bond, “to pay all such costs and damages as any party aggrieved may sustain by reason of wrongful appeal and the suspension of the execution of the judgment,” covered damages sustained by the plaintiff by the deprivation of the possession of the land pending the appeal, being the value of its use, and expenses incurred for services of counsel in resisting a reversal of the judgment. The non-payment of these damages constituted a breach of the condition of the bond. Miller v. Vaughan, supra. Affirmed.