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KOUNTZE V. OMAHA HOTEL CO., 107 U. S. 378 (1883)

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U.S. Supreme Court

Kountze v. Omaha Hotel Co., 107 U.S. 378 (1883)

Kountze v. Omaha Hotel Company

Decided May 7, 1883

107 U.S. 378


1. An appeal bond in an ordinary foreclosure suit in a court of the United States does not operate as security for the amount of the original decree, nor for the interest accruing thereon pending the appeal, nor for the balance due after applying the proceeds of the mortgaged premises, nor for the rents and profits or the use and detention of the property pending the appeal, but only for the costs of the appeal, and the deterioration or waste of the property, and perhaps burdens accruing upon it by nonpayment of taxes and loss by fire if it be not properly insured. Quaere is its mere depreciation in market value any cause of recovery on the bond.

2. An appeal bond in such a suit, instead of following the statutory requirement, "that the appellant shall prosecute his appeal to effect, and if he fail to make his plea good, shall answer all damages and costs," superadds the words that he shall "pay for the use and detention of the property covered by the mortgage in controversy during the pendency of the appeal." In an action on the bond, held that these words must be rejected, and the bond construed as having its ordinary and proper legal effect, the judge taking it having no right to exact such an addition to the condition of an appeal and supersedeas.

3. This case distinguished from those in which official bonds, and bonds given to the government for the purpose of enjoying some office or privilege, have been sustained as contracts at common law.

The case is stated in the opinion of the Court.

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