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U.S. Supreme Court

Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273 (1917)

Pease v. Rathbun-Jones Engineering Company

Nos. 360, 419

Submitted January 8, 1917

Decided March 6, 1917

243 U.S. 273


Objection going to the form of the district court's decree, if not taken on a first appeal to the circuit court of appeals, may be deemed waived on a second.

A decree of the district court that plaintiff "do have and recover " a stated sum, with provisions establishing a lien and for foreclosure, was affirmed by the circuit court of appeals with directions that "such execution and further proceedings be had as according to right and justice, and the laws of the United States, ought to be had." Held that a decree of the district court directing foreclosure sale, and that execution issue for any deficiency, was consistent with, and did not exceed, the affirmance.

The amount of deficiency being fixed by the sale, the insertion of the amount in the execution was but a clerical act.

Under Rev.Stats. of Texas, Art. 1206, a suit against a corporation is not abated by its dissolution pending appeal.

Federal courts sitting in equity may render summary judgment against sureties on appeal bonds.

Such practice does not invade the constitutional right of trial by jury; nor is it objectionable upon the ground that the legal remedy, by action on the bond, is adequate.

While it is the proper and usual practice in such cases to give notice to the surety, quaere whether notice is always essential

Objections that a summary judgment on an appeal bond was not preceded by notice and deprived the sureties of the right of trial by jury are waived by invoking the trial court's decision of the merits upon an undisputed state of facts.

Quaere whether Rule 29 of this Court -- Rule 13, 5th C.C.A. -- intends that the sureties on a supersedeas bond shall not be bound to chanrobles.com-red

Page 243 U. S. 274

pay deficiency decree in foreclosure cases, but shall pay only the costs and damages resulting from the delay caused by the appeal?

A money decree against a corporation and its sureties on a supersedeas bond, followed by levy, was satisfied by a payment made by one of the sureties "as trustee for himself and the other stockholders" of the corporation. The record not showing that the surety paid as such, in satisfaction of his own liability, held that the sureties had no standing to complain of the decree, since satisfaction, by the principal obligor, ended their liability.

228 F.2d 3 affirmed.

The case is stated in the opinion.


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