Jenkins v. Hay

Miller, J., delivered the opinion of this Court. This appeal presents for review the action of the Court below admitting in evidence the bond sued on, granting the appellees’ second prayer, and rejecting ten of the prayers offered by the appellants. The suit was instituted on the 4th of February, 1865, upon an appeal bond given to the plaintiffs, Allen Hay & Co., by the defendants, Jenkins and He'wes, to stay the operation of a decree for the sale of certain mortgaged real estate, passed on the 10th of June, 1863, in an equity cause in the Circuit Court for Baltimore county, in which the plaintiffs were complainants, and Jenkins and others were defendants. The appeal was taken on the 10th of September, 1863, and on that day the bond sued on was filed in the cause and approved by the Court. The bond bears date the 13th of August, and recites that “the said John Jenkins hath prayed an appeal” from the decree therein referred to, and the appellants insist they are responsible only for an appeal taken on or prior to the day of the date of the bond, and not for the result of an appeal subsequently taken on the 10th of September; and that by this recital the plaintiffs are estopped from saying or showing an appeal had not been taken on or prior to the 13th of August. The answer to this position is, that the bond speaks from'the time of its filing and approval, and not from the day of its date. United States vs. Le Barron, 19 How., 73, and 4 Wallace, 642. It refers to the decree, the Court and the parties in the equity cause, and in absence of all proof of any other appeal, it would be, as was said in Wallis vs. Dilley, 7 Md. Rep., 248, “a mere burlesque of justice,” to intend that this bond does not refer to the appeal thus taken on the day of its filing and approval. The same authorities in the Supreme Court show the bond was properly described and counted on in the plead [560] ings, and was admissible in evidence thereunder. The declaration also sufficiently describes the decree and the proceedings, in which it was passed to allow the record in the equity case, and the record of the affirmance of the decree by the Court of Appeals, to be admitted in evidence under it. And we are further of opinion the plaintiffs can recover under their declaration, for all loss and injury coming within the terms of the condition of the bond which they can show have resulted to them by reason of the appeal, at least, to the time of suit brought, and are not confined to the recovery merely of the costs in the appellate Court. The decree was affirmed on the 4th of October, 1864. The property was sold by the trustee on the 19th of December, 1864, for $8,200, and this sale was finally ratified, by consent, on the 23d of the same month. The Auditor’s account distributing the proceeds and leaving $1,493.27, still due and unpaid • to the complainants, on account of the principal and interest of the mortgage debt, was stated January 23d, 1865, but was not finally ratified until the 5th of April, following, and it is objected by the appellants that as the equity case was not ended by a final distribution of the fund at the time the suit on the bond was instituted, the action was prematurely brought and the plaintiffs cannot recover. This objection cannot be sustained. The affirmance of the decree was a breach of the condition of the bond and a right of action thereon then accrued to the plaintiffs. Moreover at the time of suit the sale" had been made and finally ratified, and all the damages resulting from the appeal had then in fact been sustained, and the defendants’ liability therefor had then become fixed. How much the proceeds of sale fell short of paying the mortgage debt was mere matter of calculation from existing data, and might have been proven without resort to the Auditor’s account. The final ratification of that account created no new fact as to the amount of the debt, or the loss sustained, and could in no way increase or diminish the amount the plaintiffs were entitled to recover. [561] Another point presented by one of the rejected prayers is, that neither the record of the equity case, nor of that in the Court of Appeals is competent evidence, against Hewes the surety in the bond, of the amount of the plaintiffs’ mortgage claim against Jenkins. Rad the decree, on its face, specified the amount of the mortgage debt, to pay which the property was to he sold, there could be no doubt the decree itself would have been not only admissible, but conclusive evidence of this amount as against the surety, because by the terms of his bond given to stay the decree, he stipulates that the appeal, the only purpose of which is to correct errors in the decree, shall be prosecuted with effect. By our chancery practice the proceedings prior to the decree, though not recited in, are in effect parts of it, and all errors in such proceedings are open for revision on appeal from the decree. The bill states particularly the amount of principal due on each of the notes secured by the mortgage, and the times from which interest was due and unpaid, and all the allegations of the bill were admitted by Jenkins to be true before the decree passed. The amount of the mortgage debt was thus as certainly ascertained by these antecedent proceedings, as if the calculation had been made and the result stated on the face of the decree. We perceive, therefore, no reason why these records were not competent evidence to establish, as against Hewes, the amount of the mortgage debt. The record in the case of Whitalcer vs. Jenkins, was also admissible in evidence for the purpose of proving the facts that the judgment therein set out had been rendered and execution issued upon it. This disposes of all the questions presented by the first exception, and by the appellants’ rejected prayers; the rulings of the Court below to this extent were correct and are affirmed. In granting the appellees’ second prayer there was error in two particulars, affecting the verdict in this case only in a slight degree, but which nevertheless cannot be overlooked : [562] 1st. It was error to allow the costs of the records, used in evidence at the trial, to be recovered as part of the plaintiffs’ claim, and thus bear interest from the date of the judgment. The expense of procuring such documentary proof differs in no respect from that of the attendance of witnesses who give oral testimony. It formed part of the costs of the trial to be taxed by the clerk, and was recoverable only as such costs. 2d. It was also error to allow, in this case, interest upon $6400, the whole principal of the mortgage debt, from the date of the appeal to the date of the affirmance of the decree, for the property did not sell for enough to pay this amount after payment of expenses, commissions and prior liens. Loss of interest accruing pending the appeal, is unquestionably covered by this bond. But the decree appealed from being a decree in rein., the obligors in the bond were not thereby bound on affirmance of the decree to pay the mortgage debt, nor to make good to that extent any deficiency in the proceeds of the sale of the land; nor did they stipulate that the land should sell for enough to pay even the principal of this debt. To ascertain, therefore, the actual loss of interest, we must assume the land would have sold, at the date of the appeal, for $8,200, and compute interest on so much of this sum as would then have been applied to this debt. By this rule, and according to our calculations from the data furnished by the record, the sum of $6,289.91 would have béen applicable to the plaintiffs’ claim as of the 10th of September, 1863. Interest on this sum from that date to the 4th of October, 1864, when the decree was affirmed, is therefore the amount of interest actually lost by reason of the appeal, and as the defendants were bound to pay the same immediately upon the affirmance of the decree, it is proper that interest upon it from that date to the time of trial should be allowed. Eor these errors the judgment must be reversed, and as the case must go back under a procedendo, when the question will again arise, we deem it proper to express briefly our opinion upon the principal point presented by the plaintiffs’ excep [563] tion, though that exception is not before us on this appeal. Under this bond the plaintiffs are not confined to the recovery of costs in the appellate Court and loss of interest, but may recover for any further loss or injury which they can show proceeded from the suspension of the decree, caused by the filing of the bond. Wood vs. Fulton and Starck, 2 H. & G., 78. If, therefore, they can prove that at the date of the appeal, or shortly thereafter, the property was worth in the market, or would then have sold for a greater sum than $8,200, such difference is clearly a loss resulting from the appeal for which the bond is answerable. The fact that on the 30th of September, 1863, the property was sold at sheriff's sale, subject to all incumbrances, for $125, is evidence proper to go to the jury on this subject, as showing its then market value was the amount of these incumbrances, as of that date, added to the $125. But the mere declaration of Hewes at that sale, that he considered the property worth §10,000, and the testimony of Mr. Thomas as stated in the record relative to the depreciation in value of property in some parts of the State, between September, 1863, and October, 1864, is not evidence from which the jury ought to be permitted to find this property was then worth, or would then have sold for $10,000, or any other specific sum in excess of the $8,200, for which it was subsequently sold by the trustee. (Decided 21st April, 1868.) Judgment reversed and procedendo awarded.