Champomier v. Washington

The judgment of the court was pronounced by Slidem, L An appeal had been taken by the defendant which, we said in the opinion just delivered (ante p. 722), was to be considered as abandoned. The present appeal was taken by Goodrich, the surety, on the appeal bond in that case, against whom, after the abandonment of the appeal and execution returned nulla Iona, the plaintiff proceeded by rule. The first point made by the surety is, that the plaintiff cannot proceed against him by rule, or in any form whatever, because the judgment against Washington, from which the appeal was taken, was not affirmed by this court. In support of this doctrine the surety relies on the literal expressions used in the act of 1839, “if the judgment appealed from he affirmedand similar expressions in the 575th and 596th articles of the Code of Practice. We cannot recognise so narrow a construction of the legislation on this subject, or of the bond executed by the surety. The condition of the bond, following literally the requisition of the 579th article of the Code, was “that the said Washington shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of his estate, real or personal, if he be cast in the appeal; otherwise that the said Goodrich, surety, shall be liable in his place.” The appellant did not prosecute his appeal, and thus, even in a literal sense, the condition of the bond was broken. The next point urged is that, the certificate of the clerk of the Supreme Court filed in the court below, and upon which execution was obtained, is informal ; that it should have certified that the transcript had not been “brought up,” whereas it certifies that it had not been “filed.” The objection is untenable. The expressions are equivalent, and are used as such in articles 588 and 589 of the Code of Practice. The next point is, that it was not sufficient to file the certificate of the clerk of the Supreme Court in the clerk’s office below; that the certificate should [1014] have been produced before the lower court, and an order of execution obtained. W® consider this objection well taken. The language of the Code is; “On the production of this certificate in the lower court it shall award execution on the judgment, which then becomes irrevocable.” The french text is to the same effect: “Sur la représentation de ce certificat, la cour, dont est appel, rendra un ordre d’exécution du jugement par elle rendu, et ce jugement demeui’era ferme et irrevocable.” These expressions contemplate judicial, and not mere ministerial action, upon the clerk's certificate, and very properly; for the district judge having granted an order suspending execution, while that order stands undisturbed on his records, no execution ought to issue; and whether the certificate of the clerk of the Supreme Court, which he issues without any action of the Supreme Court, is in due form and rightfully given as to time, is a matter very properly submitted to the judge, and not left to the clerk of the court below, a mere ministerial officer. Where a case is decided on a point suggested for the first time in a printed argument, filed after the case had been argued and submitted, and never communicated to the opposite party, the latter will be relieved from the effects of the surprise; and where a certified copy of an order made by the court below,annexed to the application for are-hearing, shows that the ground on which the case was decided had no existence in fact, the additional extract from the minutes will be received as if brought up on a certiorari, and the case be decided at once. ARE-HEARING was granted in this ease on the application of Benjamin and Micou, for the plaintiff, and the final judgment was pronounced by For this reason we think the action against the surety premature. The surety is not bound until a fieri facias has been duly issued against the principal and returned. It issued illegally in this case, and the basis of proceeding against the surety is defective. It is therefore decreed that the judgment of the court below against the said Goodrich be reversed, and that the rule taken against him be dismissed, as in case of non-suit; the plaintiff paying the costs of said rule, and of this appeal.