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BABBITT V. FINN, 101 U. S. 7 (1879)

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U.S. Supreme Court

Babbitt v. Finn, 101 U.S. 7 (1879)

Babbitt v. Finn

101 U.S. 7


A., against whom a judgment in favor of B. was rendered in the district court, sued out of the circuit court a writ of error which was a supersedeas, by his giving the requisite bond. The judgment having been affirmed, another bond for a supersedeas was executed and the cause removed here. The judgment

of the circuit court was affirmed. The original judgment remaining unpaid,

this action against the sureties to the first bond was brought.


1. That their liability was fixed by the judgment of the circuit court, and was not diminished by the subsequent proceedings.

2. That they are not chargeable with the costs incurred by reason of those proceedings.

3. That the issue of an execution against A. was not essential to B.'s right to recover.

March 27, 1872, James C. Babbitt, assignee in bankruptcy of E. Miller, recovered, in the district court of the United States for the Western District of Missouri, a judgment for $4,236.28 against Edward Burgess, who, on the 29th of that month, sued out of the circuit court a writ of error, and executed the requisite bond, with sureties, to render it a supersedeas.

This action was brought by Babbitt against John Finn and John Shields, who were such sureties. The breach assigned in the declaration is that

"said Burgess did not prosecute said writ to effect, nor answer all or any damages or costs on failing to make good his said plea, but that said cause came on to be heard in said circuit court during the March Term, A.D. 1873; said circuit court, on the twenty-second day of March, 1873, ordered and adjudged that the said judgment of said district court be, and the same was thereby, affirmed with costs; . . . that afterwards the said record of said cause was taken from said circuit court to the Supreme Court of the United States on a writ of error; on the 25th of October, 1875, it was duly ordered and adjudged by said Supreme Court that the said judgment of said circuit court be, and the same was thereby, affirmed with costs, and that the said Babbitt, as such assignee, recover against the said Burgess $107.35 for his costs expended in said cause in said Supreme Court."

The declaration further alleges that said judgment of said chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 101 U. S. 8

district court is still in full force and effect, and is wholly unpaid and unsatisfied, &c.

The defendants filed a demurrer, which was overruled. They then answered, admitting the execution of the bond and the first judgment of affirmance, and setting up that Burgess subsequently gave a new supersedeas bond, and removed the case to this Court, where the judgment of the circuit court was affirmed; and that by such second bond,

"the judgment of said circuit court was superseded, rendered inoperative, and vacated, and defendants were forever released and discharged from any and all liability upon said bond sued on."

For a further defense, they averred that the plaintiff had not sued out an execution against Burgess, or pursued the sureties on the second bond, they being solvent.

To these affirmative defenses the plaintiff demurred. His demurrer was overruled. The plaintiff then filed a replication, denying the new special matter set up. The court rendered judgment for the defendants. The plaintiff then removed the case here. chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 101 U. S. 11

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