Van Deusen v. Hayward — 17 Wend. 67

Majority

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Van Deusen and Forrest vs. Hayward and others.

Headnote

In an actieu on an appeal bond, under the justice act of 1824, the obligor (the appellant) can not object that tile bond is more favorable to him. than the statute required. The case of Latham v. Edv,erton (9 Cowen, 227), questioned.

A bond is not vo.d merely because it does not in all respects conform to the statute under which it is taken; it is absolutely void only when the statute declares it void.

Error from the Columbia common pleas. This was an action of debt on an appeal bond, executed in 1828, under the justice’s act of 1824. conditioned that if Hayward should prosecute with due diligence an appeal taken by him from a justice’s judgment rendered against him in favor of Van Deusen and Forrest, ir pay the amount of damages recovered against him before the justice, together with the interest thereon and the costs of the [68] appeal, or surrender his body in execution if such judgment; and in case he should prosecute such appeal with diligence to a decision in the common pleas, and if judgment should be rendered therein against him, should pay such judgment and the costs of the appeal, or surrender his body in execution of such judgment, then the bond to be void. The plaintiffs assigned as a breach in the first count of the declaration, that after the appeal judgment was rendered in their favor in the common pleas against Hayward for §49'80, damages, and $37‘43, costs, and that a fieri facias was issued and returned unsatisfied, and that the judgment remained unpaid, whereby an action accrued, &c. The second count was like the first, with the additional averment, that after the return of nulla bona on the fieri fucias, a capias ad satisfaciendum was issued upon the judgment, which was returned non est inventus. The defendants put in a general demurrer to the whole declaration, and the common pleas rendered judgment upon the same in favor of the defendants. The plaintiffs sued out a writ of error.

K. Miller, for the plaintiffs in error.

The common pleas held that the bond was not conformable to the statute, inasmuch as by its terms the appellant had the right to surrender his body in execution as well after judgment in the common pleas as on his failure to prosecute the appeal, whereas the statute (Laws of 1824, p. 294, § 36) only gave such right in case of failure to prosecute the appeal. In this the common pleas erred. The appellees might liave objected to the bond as not conformable to the statute, but having waived the objection and gone to trial in the common pleas, the appellant and his sureties when subsequently prosecuted upon the bond could not object that the bond was not conformable to the statute.

A. L. Jordan, for the defendants in error,

insisted that the bond not being conformable to the statute, was a nullity; that the common pleas did not acquire jurisdiction in the case; that on that ground the appellees might have quashed the appeal, even after a judgment against them, and [69] that not being obligatory upon the appellees, it can not bind the appellants. In support of these propositions he cited various decisions of this court. He insisted that a bond taken under a statute, and not substantially conformable to it, is void, and cited 1 Peters's C. C. R. 46; 9 Cranch, 28 and 2 Barn. & Ald. 431.

By the Court,

The breach is well assigned in the second count, and the only question made on the argument is, whether the bond was valid. The appeal was prosecuted under the act of 1824, for the recove y of debts of the value of fifty dollars (Laws of 1824, p. 294, § 36). There was formerly a doubt whether the provision in the statute allowing the appellant to surrender his body in execution, extended to both branches of the condition of the bond given on prosecuting an appeal. That question was settled in Allison v. Wilkins (1 Wendell, 153), in which it was held, that where the appeal is prosecuted to a decision in the common pleas, the con

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dition is absolute to pay the judgment, without the privilege of discharging the bond by surrendering the body in execution of the judgment. The condition of this bond in both its branches allows the appellant to surrender; and because it is more favorable to the defendants than the statute requires, it is insisted that the bond is contrary to law and void. That is the only question in the case.

This court has often had occasion to consider the sufficiency of appeal bonds, under the act of 1824, and it has generally been said that the appellant must comply strictly with the requirements of the statute, or he can derive no benefit from the appeal. The question has usually arisen on the motion of the appellee to quash the proceedings (4 Cowen, 80, 540; 6 id. 592,593; 7 id. 423, 468; 9 id. 227). Within the principle of these decisions the appeal of Hayward might have been quashed on motion, because the bond was less beneficial to the plaintiffs than the statute required. But the plaintiffs made no objection to the sufficiency of the bond. Hayward [70] has had the full benefit of his appeal, and I think the defendants should not now be allowed to object that their own voluntary obligation was less onerous than it should have been. I will not say that this opinion can be reconciled with all the decisions that have been made in relation to appeal bonds, nor that all the cases on that subject are entirely consistent with each other; but upon general principles, I think the defendants should not be heard to make this objection. The bond was not contrary to law, nor against good morals. It contained all that the statute required, and was only wrong in the addition of a further clause, which rendered it more favorable to the obligors. Where the bond is more favorable to the appellee than the statute requires, it has been repeatedly held that he can not complain that the statute has not been followed (5 Cowen, 27; 7 id. 138). That principle is applicable to this case, and should conclude the defendants.

Latham v. Edgerton (9 Cowen, 227), is no doubt a very strong case against the jurisdiction of the common pleas on appeal under any possible circum-1 stances, where the bond is not such as the appellee has a right to require. If the question were an open one, I should be strongly disposed to consider the notice and appeal bond in the nature of process to bring the matter before the common pleas; and if the appellee voluntarily appeared and proceeded to judgment without asking to have the appeal dismissed, he might then be regarded as having waived any objection to the sufficiency of the bond. A defect in the form of process, after the parties had voluntarily appeared and proceed to judgment, could not be set up for the purpose of overturning the jurisdiction of the court. But it is enough for the present that none of the cases decided the question under consideration; it has never been held that a party, after having had the full benefit of his appeal, can successfully resist an action on the bond, because he had not in all respects complied with the requirements of the statute.

This is not like the case of bonds taken by the sheriff for ease and favor or by color of his office, which are declared absolutely void by statute (7 Johns R. 159, 426; 8 id. 98). A bond is not void merely because it may not in all respects conform to the statute under which it was taken (1 Wendell, 464; 12 id. 306). The cases cited from 1 Peters's C. C. R. 46, 7 Cranch, 28 , and 2 Barn. & Ald. 431; do not militate against this doctrine.

Judgment reversed.