Levas v. Massachusetts Bonding & Insurance

152 P.2d 320, 21 Wash. 2d 562

• Court: Washington Supreme Court
• Decided: October 4, 1944
• Docket: No. 29242.
• Status: Published

Opinions

Steinert, J.

Plaintiff brought suit for recovery upon a cost bond executed by the defendant as surety. Trial before the superior court resulted in findings, conclusions, and judgment in plaintiff’s favor. Defendant appealed.

The record discloses that evidence, both oral and documentary, was introduced at the trial and considered by the court. No statement of facts or bill of exceptions, however, has been brought to this court on appeal. In that situation, the only question presented for review is whether the factual findings of the trial court support the judgment; and in the consideration of that question it is to be conclusively presumed that such findings are correct. In re Munson’s Estate, 189 Wash. 537, 66 P. (2d) 293; Bennett v. McKellips, 8 Wn. (2d) 176, 111 P. (2d) 558; Chas. H. Lilly Co. v. Panino, 18 Wn. (2d) 128, 138 P. (2d) 206.

The facts, as formally found by the trial court, are as follows: In November, 1940, one Jerry Chatos, administrator of the estate of James Livanas, brought suit against John Levas and the respondent herein, Mary Levas, who at that time was John Levas’ wife. That action, which sought foreclosure of a real estate mortgage previously executed by Levas and his wife, was designated as cause number 323930 of the superior court for King county.

Upon a trial of the Chatos action, in 1941, a decree of foreclosure was entered, but for an amount less than that provided in the mortgage. The defendant in that action, the respondent here, Mary Levas, thereupon appealed to this court, and shortly thereafter the plaintiff therein, Chatos, filed a cross-appeal. To effectuate his cross-appeal, Chatos executed a cost bond in the sum of two hundred dollars, with the appellant herein, Massachusetts Bonding and Insurance Company, as surety thereon. The conditions of the bond were that, on payment by Chatos of all costs and damages, not exceeding two hundred dollars, awarded against him on the cross-appeal, or on the dismissal thereof, the obligation was to become void, otherwise to remain in full force and effect.

In passing, it may be stated that the bond mistakenly recited that Chatos was obligated to pay all costs and damages, not exceeding two hundred dollars, awarded against John Levas and Mary Levas, whereas it should have provided that Chatos was obligated to pay all costs and damages, not exceeding the foregoing amount, awarded against himself. However, no question is raised as to that fact by either party herein.

Upon a hearing of the appeal in the former action, the judgment of the trial court was reversed, with instructions that the action be dismissed. Chatos v. Levas, 14 Wn. (2d) 317, 128 P. (2d)- 284. Thereafter, on September 15, 1942, a remittitur from this court directing reversal of that judgment and dismissal of that cause was filed in the superior court for King county, in cause number 323930. Thereupon, judgment for costs on appeal was entered, in that cause, in favor of this respondent and against Chatos, the cross-appellant in that action.

As appears from the opinion in Chatos v. Levas, supra, the cross-appeal by Chatos in that action was from so much of-the judgment of the trial court as allowed an offset against the amount of the mortgage and granted judgment in favor of Mary Levas, the present respondent, against John Levas for the full amount of the mortgage.

After the filing of the above remittitur and the entry of judgment thereon in cause number 323930, the respondent here, Mary Levas, made repeated demands upon the surety, appellant herein, for the payment of the judgment for costs amounting to two hundred ninety dollars; but appellant refused to pay any part thereof.

From the facts thus found, the trial court in the present •action concluded that respondent was entitled to recover from the appellant the sum of two hundred dollars, the amount of its bond, together with interest from September 15, 1942, and costs in the instant case. Judgment was entered accordingly.

Appellant herein now makes two contentions upon this appeal. It first contends that in the former action, brought by Chatos, it was surety on the bond on the cross-appeal only and therefore cannot be held liable, upon such bond, for the costs incurred and allowed on the main appeal in that action.

From what has been, stated above with reference to the provisions of the bond, it will be observed that appellant’s obligation thereon was to pay all costs and damages awarded against Chatos, not exceeding two hundred dollars, on the cross-appeal or on the dismissal thereof. As further shown above, upon the hearing of the former appeal the judgment of the trial court in cause number 323930 was reversed and the action was ordered dismissed. The judgment of reversal was general and unqualified, constituting a dismissal of that action in its entirety. That disposition of the case not only in effect operated as a dismissal of Chatos’ cross-appeal, but also actually disposed of it on its merits, because the amount involved in the cross-appeal was merely a fractional part of Chatos’ original claim, and this court held in the former appeal that Chatos could not recover at all in the action brought by him. The remittitur from this court in that action likewise directed reversal of the original judgment and dismissal of that cause. Examination of the judgment rendered by this court in that case discloses that it directed that respondent herein, Mary Levas, have and recover from Jerry Chatos, as administrator, costs of that action, taxed at $290.09, and that execution issue therefor. Moreover, the trial court in the case at bar specifically found that judgment for costs on appeal had been entered against Chatos in the former action.

The dismissal by this court of the action brought by Chatos fulfilled one of the specific conditions giving rise to appellant’s liability on its bond for all costs awarded against Chatos. The conditions of the bond having thus been fully met by the adjudicated outcome of the former action, the appellant cannot now be heard to say that its liability is limited to such costs only as might be allocable to the cross-appeal.

Appellant’s next contention is that respondent’s remedy, if any she had, was by motion to have the remittitur in the former action amended to include the appellant as one of the parties liable upon the judgment for costs, and not by an independent action brought directly against the surety. This contention is not supported by the law.

The general rule is that an appeal bond may be enforced by the ordinary common-law actions and that the summary remedies provided by statute are merely cumulative and do not affect the right to resort to an independent action on the bond. 3 Am. Jur. 775, Appeal and Error, § 1300; 5 C. J. S. 1618, Appeal and Error, § 2075.

That rule was recognized, though not specifically stated, in McFeron v. Fidelity & Deposit Co. of Maryland, 85 Wash. 303, 148 Pac. 14. In Empson v. Fortune, 102 Wash. 16, 172 Pac. 873, the rule was not only impliedly recognized but also was definitely enunciated in the following language:

“It seems to be well settled law that whatever statutory right a successful party upon an appeal may have to a summary judgment rendered by the appellate court against sureties upon a supersedeas bond in connection with the final disposition of the case by the appellate court is a remedy merely cumulative of the common-law remedy, and does not affect the right of such successful parties to maintain an independent action upon such a bond in lieu of such statutory remedy.”

Upon the facts found by the trial court, respondent was entitled to pursue the remedy sought in this action.

The judgment is affirmed.

Simpson, C. J., Millard, Blake, Robinson, Jeffers, and Mallery, JJ., concur.