1. A stipulation, signed by the parties or their attorneys and
filed with the clerk of the circuit court, submitting a civil cause
for trial on an agreed statement of facts is " a stipulation in
writing waiving a jury" within the meaning of sec. 649 of the
Revised Statutes.
2. This Court has authority under sec. 700 of the Revised
Statutes to determine, as in case of a special verdict, whether the
facts set forth in such statement are sufficient in law to support
the judgment, although the finding of the circuit court on them be
in form general.
3. An appeal was taken by a county from a decree of foreclosure
rendered against it upon a mortgage of its lands to secure the
bonds of a railroad company. The decree was affirmed, and the costs
of the appeal were paid.
Held that the liability of the
county and its sureties upon the supersedeas bond is limited to
such damages as resulted from a delay in the sale of the lands, and
does not include the balance remaining unpaid of the decree after
applying thereto the proceeds of the sale, nor the interest thereon
which accrued pending the appeal.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The County of Wayne, Illinois, mortgaged its swamp and
overflowed lands to secure an issue of bonds by the Mt. Vernon
Railroad Company. The county was in no way bound for the payment of
the debt. It simply mortgaged its lands for the benefit of the
company. Default having been made in the payment of the bonds, a
suit was begun in the Circuit Court of the United States for the
Southern District of Illinois to foreclose the mortgage. In this
suit, a decree was entered June 25, 1874, finding the amount due
from the company on its bonds and directing that the lands of the
county be sold and the proceeds applied to the debt. From this
decree the county appealed to this Court, giving a bond, with a
large number of persons as sureties, in the penal sum of $40,000,
conditioned according to law, a supersedeas. At the October
Term,
Page 103 U. S. 555
1876, the decree below was affirmed here with costs and the
cause remanded.
Supervisors v. Kennicott, 94 U. S.
498.
This was a suit on the appeal and supersedeas bond, the
allegations in the declaration as to damages being as follows:
"A large amount of damages hath accrued to the said plaintiffs
by the failure of the said board of supervisors to make good their
plea, to-wit, the amount of $100,000, consisting of $40,000 of
interest which accrued on said decree during the pendency of said
appeal, which is wholly unpaid, and of $200,000 of said decree
remaining unsatisfied by sale of the lands ordered by said decree,
and of $50,000 depreciation in the value of said lands during the
pendency of said appeal, and of $25,000, attorneys' fees for
attending to said appeal, and $50,000 taxes on said lands during
the pendency of said appeal."
The bill of exceptions shows that the case was submitted to the
court on an agreed state of facts, it being stipulated "that pleas
proper in such case were on file." This agreed statement purported
to be signed by the attorneys for the plaintiff, the attorney for
the county, and the attorney for the sureties on the bond. The
material to the questions presented here is as follows:
"It is further agreed that so far as the right of recovery in
this case is concerned, it shall be deemed and considered that a
sale of the lands in the decree described had been made and
approved by the court before the commencement of this suit, and
that the lands in the decree and mortgage and trust deed mentioned
did not bring enough at said sale to satisfy and pay the amount due
the complainant under the decree as holders of the bonds of said
railroad company by an amount largely over the amount of the appeal
bond in this cause sued on, and that the interest at the legal rate
on the aggregate amount of the bonds of the railroad company found
due the complainants as established by the decree during the
pendency of said appeal would amount to a sum largely exceeding the
amount of the appeal bond in this cause sued on."
It was further admitted, as appears of record, that the costs of
the appeal had been paid.
Page 103 U. S. 556
Upon the facts so stated and agreed, the court found generally
for the plaintiffs on the issue and that they had sustained damage
to the amount of $40,000, the penalty of the bond. Judgment was
given accordingly. To reverse that judgment this writ of error has
been prosecuted.
It is contended by the defendants in error that the case cannot
be reexamined here on its merits 1, because the record does not
show that a "stipulation in writing waiving a jury" was filed with
the clerk, as required by sec. 649 of the Revised Statutes, and 2,
because the finding of the court was in form general, and not
special, as required by sec. 700.
1. As to the waiver of a jury. The record does contain a
stipulation in writing signed by the attorneys of the respective
parties submitting the cause to the court for trial on the agreed
facts. As a case cannot be submitted to the court for trial without
waiving a jury, a stipulation to submit, especially if it be on
agreed facts, is of itself a sufficient waiver to meet the
requirements of sec. 649.
2. As to the finding. Even before the Act of 1865, c. 86, sec.
4, 13 State. 501, reproduced in secs. 649 and 700, Rev.Stat., it
was always held that a judgment on agreed facts spread at large on
the record could be reviewed here on a writ of error.
United States v.
Eliason, 16 Pet. 291;
Stimpson
v. Baltimore & Susquehanna Railroad Co., 10
How. 329;
Graham v.
Bayne, 18 How. 60;
Suydam v.
Williamson, 20 How. 427;
Campbell
v. Boyreau, 21 How. 223;
Burr v. Des
Moines Company, 1 Wall. 99. Such a statement was
considered to be equivalent to a special verdict and to present
questions of law alone for the consideration of the court. It is
manifest that the act of 1865 was not intended to interfere with
this practice. The evident object of that legislation was to give
special findings the same effect for the purposes of a writ of
error as a special verdict or an agreed case.
This record shows distinctly that the court was only required to
determine whether in law, on the agreed facts, the defendants were
liable on their bond. It is true that in the judgment as entered,
it is stated that the court found the issue in favor of the
plaintiffs, but that, when read in connection with the bill of
exceptions, is no more than a declaration that the court
Page 103 U. S. 557
found the law to be in favor of the plaintiff on the case as
stated.
There were in fact no pleadings after the declaration, and the
effect of the stipulation that please proper to the case were on
file was that the pleadings presented in form the case as stated,
and left nothing for the court to do but to enter judgment thereon.
There was no issue but of law, and that the court found for the
plaintiffs. The same case is brought here by the record, and we are
entirely satisfied it is one we have the power to review.
This brings us to the consideration of the assignment of errors,
which is to the effect that the court was wrong in giving judgment
for the plaintiffs. Sec. 1000 of the Revised Statutes provides that
when an appeal "is a supersedeas and stays execution," the security
must be that the appellant "shall prosecute his appeal to effect,
and if he fails to make his plea good, shall answer all damages and
costs." In regulating the practice under this statute, we, by our
Rule 29, provide that in suits on mortgages,
"indemnity . . . is only required in an amount sufficient to
secure the sum recovered for the use and detention of the property,
and the costs of the suit, and
just damages for delay,' and
costs and interest on the appeal."
The damages to be answered for are clearly only such as are
incident to the plea that fails, that is to say, the appeal that is
taken.
The appeal of Wayne County was from a decree which subjected its
lands to the payment of the debt of the railroad company. By taking
the appeal, no new obligations were assumed in respect to the debt.
Clearly, then, the damages which the county and its sureties bound
themselves to answer must have been such only as followed from the
delay in the sale of the property. That does not necessarily imply
an obligation to pay the balance which remains of the mortgage debt
after the entire proceeds of the lands have been applied to its
satisfaction.
In
Jerome v.
McCarter, 21 Wall. 17, we held that our rule did
not require security for the payment of all the accumulation of
interest on the mortgage debt pending the appeal, but only
indemnity against loss by reason of such accumulation,
Page 103 U. S. 558
the amount of which would depend in each case on its own
facts.
The damages in this case claimed by the plaintiffs are 1, for
interest on the debt which accrued during the appeal; 2, the
balance of the decree which remained unsatisfied after the sale; 3,
depreciation in the value of the lands; 4, attorney's fees; and 5,
taxes on the lands. No claim is made for the use and detention of
the property otherwise than in this way. The agreed case shows that
there was an accumulation of interest on the debt during the appeal
largely exceeding the penalty of the bond, and that a balance of
the mortgage debt, also much more than the penalty of the bond, was
left unpaid when the proceeds of the sale had all been applied in
accordance with the terms of the decree. This is the extent of what
was agreed on. There is no statement that the lands had depreciated
in value or that taxes had accumulated. Neither is it stated that
any loss had actually accrued to the appellees by reason of the
stay of sale. So far as appears, the lands may have increased in
value to an amount larger than the accumulation of interest, and
the taxes may have been paid. The single question, therefore, was
presented to the court whether, on the agreed facts, the county and
its sureties were liable in law to the extent of their bond for the
accumulation of interest or the balance of the mortgage debt. The
judgment was to the effect that they were. In this we think there
was error. Upon the agreed facts, no damages had resulted from the
appeal for which the county could in law be required to answer, and
the judgment should have been for the defendants.
There were other rulings presented by the bill of exceptions,
but as upon the whole case as made there can be no recovery, we
have considered it unnecessary to state them.
The judgment of the circuit court will be reversed and the cause
remanded for further proceedings to be had therein not inconsistent
with this opinion, and it is
So ordered.