Oehring v. Fox Typewriter Co.

266 F. 682, 12 A.L.R. 718, 1920 U.S. App. LEXIS 1743

• Court: Court of Appeals for the Second Circuit
• Decided: May 12, 1920
• Docket: No. 234
• Status: Published

Opinions

HOUGH, Circuit Judge

(after stating the facts as above). Undoubtedly the bond given was not a supersedeas bond. The discrepancy between the recovery and the security negatived any such inference. Lee v. Jackson, etc., Co. (C. C. A.) 261 Fed. 721. The question submitted, therefore, is whether, when what in this circuit is commonly called a bond for costs on appeal is given, such bond, when in the language of this instrument, affords security for the costs of the trial court, as well as for those of the appellafe tribunal. It is well to remember that all costs, trial as well as appellate, are creatures of statute, old as the original statutes may be. This subject is historically treated, amply and interestingly, in Re Rule No. 37, 5 Pet. 724, 8 L. Ed. 288; Day v. Woodworth, 13 How. at page 371, 14 L. Ed. 181; Cameron v. Paul, 11 Pa. 277; Lehigh Valley, etc., Co. v. McFarland, 44 N. J. Law, 674

The nature and history of what are commonly called “supersedeas bonds” in the practice of the United States courts has been set forth in Rederiaktiebolaget Amie v. Universal, etc., Co., 245 Fed. 282, 157 C. C. A. 474. The bond which is the subject of this appeal was given pursuant to what was at its date rule 13 of this court (235 Fed. vi, 148 C. C. A. vi), since October 16, 1918, rule No. 12. This regulation follows in its language rule 29 of the Supreme Court (32 Sup. Ct. xii) and the obligation of the bond literally follows the language of the .rule.

The question whether a bond thus worded, commonly called a cost bond, and never thought to - work a supersedeas, covers trial costs, is so far as we know, new in this circuit. It is probable that the practical usage of the bar has been in accord with the ruling below. The exact point here argued, however, was presented to the Court of Appeals of the Third Circuit in Fidelity, etc., Co. v. Expanded Metal Co., 183 Fed. S68, 106 C. C. A. 114, and it was there held that a bond, which, not being a supersedeas, left the parties successful wholly at liberty to issue execution, notwithstanding an appeal, did furnish security for costs accrued before it was given; i. e., trial costs. The Fifth Circuit has followed this ruling in a criminal cause (American Surety Co. v. United States, 239 Fed. 680, 152 C. C. A. 514), and the Ninth Circuit has approved it in Pacific, etc., Co. v. Harvey, 250 Fed. 952, 163 C. C. A. 202; and again in Johnson v. United States (C. C. A.) 260 Fed. 783.

A majority of this court incline to approve the reasoning and conclusion of Cross, J., in the Expanded Metal Case, but are strongh of the opinion that, the”matter being; one of practical construction, as to which uniformity between the several circuits is highly desirable, we should adhere to the ruling now so widely accepted.

It is accordingly directed that the order appealed from be reversed, with costs, and .the matter remanded, with directions to grant plaintiff’s application.