Seymour v. Gregory

21 F. Cas. 1115, 10 Biss. 13

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: October 15, 1867
• Status: Published

Opinion

DRUMMOND, Circuit Judge

(charging jury). The breach on the bond alleged in the declaration is that the company did not prosecute its writ of error to effect, and had not answered to the obligees all or any part of the damages and costs, by reason of the failure to make good its plea. And the declaration then sets forth the affirmance of the judgment by the supreme court on the 11th of January, 1876, the remanding of the cause, the issue of an execution from the circuit court against the company, the return of nulla bona, and avers that the company has no property in Illinois subject to execution, and that no part of the judgment has been paid. On the facts of the case, which are all either in writing or of record, and about which there seems to be no controversy, the questions are, whether the- plaintiffs have established (1) that the company failed to prosecute its writ of error to effect; or (2) that the company failed to make good its plea.

It is not seriously insisted, as I understand, by the plaintiffs’ counsel, that the company did not prosecute its writ of error to effect, but it is claimed that it failed to make good its plea. The writ of error was regularly sued out and prosecuted, the record filed in due time, errors assigned, and everything done, in the prosecution of the writ by the .company, which the law or the rules of the court required; and the result proved that the writ of error had been effectual, because the judgment on which the writ of error was sued out did not stand.

The answer to the other question depends on what was meant by its plea and was its plea made good? The bond recites that the company had prosecuted a writ of error to reverse the judgment. The writ declares that it is issued because, in the proceedings and record, and in the rendition of the judgment. a manifest error had happened; and declares further that the record is to be taken to the supreme court to be inspected, and that the court “may cause further to be done therein to correct that error which of right and according to law and custom of the United States should be done.” The •plea is that manifest error had occurred in the record and judgment. The supreme court found that was true, and reversed the judgment, but promised, if the defendants in error would perform certain acts and furnish evidence of the same to .the supreme court, it would affirm the judgment; and when the remittitur was made and proved to the supreme court that court did affirm the judgment. But what judgment? Not the original judgment on which the writ of error issued, but one purged of error, as found by the supreme court.

The* question then is. whether within the meaning of the condition in the bond, as against the sureties, the company had failed to make its plea good, because, under the power conferred on the supreme court, it had directed the judgment of this court to be changed, and then affirmed it as changed. I think not. It seems to me that, under the facts of the case, the company did prosecute the writ of error to effect, and did make its plea good, and, as at present advised, I so instruct the jury.

Verdict and judgment for defendants.