This Court disapproves of the practice, followed by an
intermediate appellate court in this case, of reversing a judgment
on one of a number of assigned errors without passing on the
others; it is likely to involve duplicate appeals.
Increasing the
ad damnum of a suit in replevin to an
amount within the penalty of the bond by amendments to make the
declaration conform to the evidence as to value is not, under the
laws or practice of Hawaii, illegal, nor does it have the effect of
discharging the sureties. The surety on a bond given in course of a
judicial proceeding is represented in that proceeding by his
principal, and becomes responsible, to the amount of the penalty,
for amendments allowed by the court that do not introduce new
causes of action.
A plaintiff suing in replevin is not estopped from showing that
he
Page 219 U. S. 321
mistakenly undervalued the property sought to be recovered, and
one becoming surety for performance of a judgment of the court in a
pending suit is bound by the judgment against his principal to the
limit of his obligation.
In the absence of fraud and collusion, the question of value of
property taken under replevin as found in the replevin suit cannot
be relitigated in a suit against the sureties on the redelivery
bond.
The effect of a petition for rehearing, if duly filed and
entertained by the court, is to prevent the judgment from becoming
final and reviewable until disposed of, and when disposed of, an
appeal from the judgment is regulated by the statutes then in
force, even if enacted after the original decision, and so
held as to an appeal from the Supreme Court of Hawaii
under the Act of March 3, 1905.
Litigants and their sureties are subject to the power of the
sovereign to extend the right of review and appeal pending
litigation, and no fundamental rights are denied or contractual
rights of the parties affected by the exercise of that power.
A redelivery bond is executed subject to such possible changes
in the procedure as do not affect the contract, and under the law
of Hawaii, as amended during the pendency of this litigation, the
action against the sureties was properly brought.
In this case, as the evidence of tender of delivery was not
unequivocal, the question of whether the property was actually
restored was for the jury, and the charge being full and fair,
there was no error.
18 Haw. 398 reversed.
This was an action for breach of the condition of a redelivery
or return bond executed by the defendant to a certain replevin suit
instituted in a circuit court for the Territory of Hawaii. The bond
was in these words:
"Circuit Court, Third Circuit, Territory of Hawaii"
"$1.00 stamp"
"
William W. Bierce, Limited, a Corporation,
Plaintiff"
"
v."
"
Clinton J. Hutchins, Trustee"
"
Replevin"
"
Return Bond"
"Know all men by these presents:"
"That we, Clinton J. Hutchins, trustee, as principal, and Henry
Waterhouse and Arthur B. Wood, as sureties,
Page 219 U. S. 322
are held and firmly bound unto William Bierce Company, Limited,
its successor or successors and assigns, in the sum of thirty
thousand (30,000) dollars, for the payment of which, well and truly
to be made, we bind ourselves, our successors herein and
administrators, jointly and severally, firmly by these
presents."
"The condition of the foregoing obligation is as follows:"
"That whereas the said William W. Bierce, Limited, has begun in
the circuit court of the third circuit of the territory of Hawaii a
replevin suit against Clinton J. Hutchins, trustee, to recover from
him certain property specifically set forth in the bill of
complaint filed in said suit, and of the value of $15,000, as
stated in the affidavit filed therein, and has requested that the
said property be taken possession of by the high sheriff of the
territory of Hawaii, or his deputies, and turned over to said
plaintiff, and whereas said defendant is desirous of having said
property returned, and has required the return thereof from said
high sheriff and his deputies:"
"Now therefore if the said property and all thereof shall be
well and truly delivered to said plaintiff, if such delivery be
adjudged, and payment to said plaintiff be well and truly made of
such sum as may, for any cause, be recovered against the defendant,
then this obligation to be null and void; otherwise to be and
remain in full force and effect."
"In witness whereof we have hereunto set our hands and seals
this 21st day of July, A.D.1903."
"(Signed) CLINTON J. HUTCHINS,
Trustee"
"(Signed) HENRY WATERHOUSE,
Surety"
"(Signed) ARTHUR B. WOOD,
Surety"
"The foregoing bond is approved as to its sufficiency of
sureties."
"Dated July 21, 1903."
"(Signed) A.M. BROWN"
"
High Sheriff"
Page 219 U. S. 323
The replevin suit referred to was instituted July 20, 1903, by a
corporation styled William W. Bierce, Limited, against Clinton J.
Hutchins, trustee, and was for the recovery of certain railway
material which had been conditionally sold to the Kona Sugar
Company, another corporation. The property of the latter company,
including this material, was acquired at a receiver's sale by
Hutchins, trustee, with notice that the title had been retained by
the Bierce Company, and that the property had not been paid for.
The plaintiff's affidavit (Rev.Laws, Hawaii § 2102) stated the
value of the material which it was sought to reclaim at $15,000,
and a bond in double that sum was duly executed, with the usual
conditions of such replevin bonds. The defendant Hutchins
thereupon, in order to retain possession of the material claimed,
executed a redelivery or return bond under § 2112, Rev.Laws,
Hawaii, being the bond upon which the present action is based.
The replevin suit resulted, on March 19, 1904, in a judgment for
the plaintiff and against the defendant Hutchins, trustee, for the
return of the property and damages for its detention, or in default
of return, that the defendants pay the value of the property, which
was adjudged to be $22,000.
Inasmuch as the defense by the surety in the action upon the
return bond referred to grows in part out of matters which were
litigated in the replevin suit, we must state somewhat fully the
proceedings in that action. That case, upon a bill of exceptions,
was taken to the Supreme Court of Hawaii. Certain of the exceptions
taken by the defendant Hutchins were sustained in a judgment
rendered January 28, 1905, one of which was that the trial court
had erred in not rendering judgment for the defendant
non
obstante veredicto. See William W. Bierce v.
Hutchins, 16 Haw. 418. A motion for a rehearing was disposed
of in that court April 29, 1905 (
see 16 Haw. 717). On May
6,
Page 219 U. S. 324
1905, a judgment was entered reversing the judgment of the
circuit court and remanding the case, with direction to render a
judgment for defendant
non obstante veredicto. Thereupon
an appeal to this Court was allowed, where the judgment of the
Hawaiian supreme court was reversed, for the reasons appearing in
the opinion reported in
205 U. S. 205 U.S.
340, and the case remanded to that court. Thereupon the Supreme
Court of Hawaii held that the defendant Hutchins was then entitled
to have a hearing upon other exceptions not passed upon at the
first hearing. These were therefore heard and overruled. 18 Haw.
374. An appeal from that judgment was taken to this Court, and
dismissed, as not from a final judgment.
211 U. S. 211 U.S.
429.
Pending the review proceedings above referred to, the plaintiff,
upon cause shown, obtained a rule on the defendant Hutchins to give
a new redelivery bond. Failing in this, an execution issued to
recover the property which the defendant had been directed to
return, and for the damage for detention and costs. These damages,
amounting to $1,050, and the taxed costs, were paid and may be
dropped from consideration. The sheriff returned that he was unable
to obtain possession of the materials for which the action had been
instituted, and therefore returned the execution unsatisfied.
Pending the review proceedings already stated, this action was
begun against the obligors and the executors of Henry Waterhouse,
one of the sureties upon the return bond given by Hutchins, as
stated. Wood, the other surety, was sued, but was not found.
Hutchins, for reasons immaterial, was dropped out. Upon the issued
joined there was a verdict and judgment against the executors of
Waterhouse for $22,000, the value of the property which the obligor
had failed to return, as required by the judgment in the replevin
suit, that being the value adjudged in that action, together with
interest and costs of former
Page 219 U. S. 325
actions not paid, the whole aggregating $28,156.74, for which
there was judgment.
A bill of exceptions was taken from this judgment to the Supreme
Court of Hawaii, which court, passing over the great majority of
exceptions without ruling, sustained one which assigned error in
the overruling of the motion of the defendants below for judgment
non obstante veredicto.
The case having been remanded for judgment pursuant to the
opinion and mandate, there was a judgment notwithstanding the
verdict for the defendant. This in turn was affirmed by the supreme
court of the territory, and the present writ is sued out to review
that judgment.
Page 219 U. S. 331
MR. JUSTICE LURTON, after making the above statement, delivered
the opinion of the Court.
The right to have this judgment reviewed by this Court involves
the review of the judgment upon which the mandate issued, and
necessarily brings here the first as well as
Page 219 U. S. 332
the second bill of exceptions and transcript as one case. As it
appears from the first bill of exceptions and the opinion and
judgment in that case that the plaintiffs in error in that case,
the defendants in error here, had taken many exceptions to the
judgment against them which were not passed upon by the supreme
court of the territory, it must follow that, if we shall find that
that court erred in reversing the judgment upon the single error
considered, that the other exceptions and errors not considered are
now open for review, inasmuch as the judgment might have been
reversible for other errors not considered. The practice adopted by
the supreme court of the territory of passing without deciding
other errors assigned upon a judgment is not approved, since it is
likely to involve further review proceedings and duplicate appeals.
Especially is this so in cases which are subject to the appellate
jurisdiction of this Court. The single ground upon which the
Supreme Court of Hawaii reversed the judgment in favor of the
Bierce Company, and against the executors of the surety upon the
return bond made by the defendants in the replevin suit, was that,
by two amendments made to the declaration in the replevin suit, the
value of the property which the plaintiff sought to reclaim was
increased from $15,000 to $22,000, whereby, as the court below
held, the liability of the sureties was enlarged beyond their
undertaking. The effect of this was held to discharge the sureties.
In this we think the court erred.
The plaintiff, to make out its case, introduced in evidence,
together with other matters, the pleadings, the judgment, the
return of the sheriff upon the execution for a return of the
property unsatisfied, and the return bond. The judgment, as before
stated, was for a return of the property and costs, and $1,045,
damages for detention, and, in default of a delivery of the
property, that the defendant Hutchins, trustee, pay the value
thereof, found to be $22,000, for which there was judgment.
Page 219 U. S. 333
The penalty of the return bond was $30,000. The damages laid in
the complaint, as amended, were $28,156.74, and the judgment in the
trial court upon the verdict was for the full damages claimed.
At the close of all the evidence, the defendants moved the court
to instruct a verdict for the defendants. This motion was based
upon several grounds. The principal one was that the transcript of
the record in the replevin action showed (a) that the plaintiff in
that action had, in the affidavit required by § 2102, R.L.
Hawaii, executed before the issuance of the writ of replevin,
stated the value of the property claimed to be $15,000; (b) that
the penalty of the replevin bond was in double this value; (c) that
the return bond recited that the value of the property claimed had
been stated in the complaint in the replevin proceeding to be
$15,000; (d) that the complaint had been subsequently amended so as
to state the actual value to be $20,000, and a second time amended
so as to state the actual value to be $22,000, and that the legal
effect of these amendments was to release and discharge the
sureties.
The motion for an instructed verdict was overruled, and the case
submitted to the jury, who found the actual value of the property
claimed to be $22,000, and for this there was an alternative
judgment, as stated before.
After verdict, the defendants moved a judgment
non obstante
veredicto upon like grounds. This too was denied.
On the appeal of the defendants to the Supreme Court of Hawaii,
the action of the trial court in allowing the amendment of the
complaint so as to increase the value of the property in the manner
stated was assigned as error. Upon this matter the supreme court
said:
"The only exceptions to rulings prior to the judgment on which
the defendant relied in argument are (1) to allowing the plaintiff
to amend its complaint by changing the averment of the value of the
property, first from $15,000 to $20,000, and then to $22,000. . . .
"
Page 219 U. S. 334
"The amendments were properly allowed under the statute (sec.
1738. R.L.). Before the property was delivered to the plaintiff,
the defendant obtained a return of it to himself upon his statutory
bond in double the value of the property as originally stated by
the plaintiff. It does not appear that the defendant's rights were
affected by the amendment increasing the value."
Bierce v. Hutchins, 18 Haw. 511, 522.
This brings us to the proposition as to whether a question thus
once litigated and decided in the replevin suit is open for
relitigation by the surety when sued upon the return bond. The
surety on such a bond, given in the course of a judicial
proceeding, is represented in that proceeding by his principal.
That the court possessed the power of allowing an amendment which
introduced no new cause of action is plain. The surety became such
in contemplation of the possible exercise of that power. The
penalty of the bond was not exceeded, and an increase in the
ad
damnum did not introduce a new cause of action.
Townsend
National Bank v. Jones, 151 Mass. 454. By the execution of the
bond, the surety consented to become responsible to the amount of
the penal sum therein named.
The only possible objection lay in the question as to whether
the plaintiff was estopped from laying the damages in excess of the
value of the property stated in the original complaint or
affidavit. There are cases which hold that, in the replevin action,
the plaintiff, having himself fixed the value of the property
claimed by an affidavit, is estopped thereby from showing that it
is of a less value, if he failed in his suit, though the defendant
may show, if he can, that it was of a greater value.
Washington
Ice Co. v. Webster, 125 U. S. 426. But
we are not disposed to think that a plaintiff in such a suit may
not show, especially when, as here, the defendant upon a return
bond was suffered to retain the possession, that he had
mistakenly
Page 219 U. S. 335
undervalued the property. We have been cited to no authorities
which extend the principle of estoppel to shut out such an
amendment of the
ad damnum clause of the complaint in a
replevin action. However this may be, the questions were directly
in issue in the replevin suit, and decided against the defendant
therein.
One who becomes a surety for the performance of the judgment of
a court in a pending case is represented by his principal, and is
bound by the judgment against his principal within the limits of
his obligation.
Washington Ice Co. v. Webster,
125 U. S. 426,
125 U. S.
444-446;
Stovall v.
Banks, 10 Wall. 583.
The issue as to whether the value of the property redelivered to
the defendants was greater than alleged in the plaintiff's
affidavit and claimed in the original complaint, as well as whether
the amendment of that complaint was such as to change the cause of
action, were issues made and decided against the principal in the
bond upon which the sureties were bound, and cannot be relitigated,
in the absence of fraud and collusion, by a surety when sued upon
the bond.
Townsend National Bank v. Jones, 151 Mass. 454,
459;
Greenlaw v. Logan, 2 Lea 185;
Kennedy v.
Brown, 21 Kan. 171;
Hare v. Marsh, 61 Wis. 435;
Mason v. Richards, 12 Ia. 74.
The motion of the executors of Waterhouse in the trial court for
a judgment
non obstante veredicto was predicated upon
several distinct grounds. To the action of the trial court in
overruling this motion exceptions were duly taken, and this action
was made the subject of distinct assignments of error upon the writ
of error to the Supreme Court of Hawaii. That court, as we have
already seen, considered only such of the grounds relied upon as
raised the question of the effect of the increase of the
plaintiff's
ad damnum clause from $15,000 to $22,000.
Concluding that the necessary legal effect of that amendment of the
complaint
Page 219 U. S. 336
was to relieve the sureties upon the return bond, it reversed
the judgment and remanded, with direction to give judgment for the
said executors, notwithstanding the verdict against them.
See 19 Haw. 398.
The learned counsel for the executors have insisted that, if we
shall conclude that the action of the Supreme Court of Hawaii is
not to be supported upon the single ground considered by it, that
it is then the duty of this Court to consider the grounds for the
motion not passed upon, and if upon any one them the judgment of
the Supreme Court of Hawaii may be sustained, its judgment should
not be disturbed. Upon this contention each of the several grounds
upon which such motion was based has been covered by the briefs
filed by the present defendants in error.
Among the grounds for a judgment notwithstanding the verdict not
considered was that the judgment of the Supreme Court of Hawaii
reversing the judgment in favor of William W. Bierce, Limited,
against Hutchins, trustee, was final as to the surety upon the
return bond, and was not subject, so far at least, as the surety
was concerned, to be reviewed or set aside by any writ of error to
this Court, and that the judgment of this Court,
205 U. S. 205 U.S.
340, reversing the judgment of the Hawaiian Supreme Court should
not in anywise affect the present defendants in error as
representatives of Waterhouse, one of the sureties upon the return
bond. But the judgment of the Hawaiian Supreme Court was not final
prior to the Act of Congress referred to. It is true that the
opinion of the Hawaiian court reversing the judgment of the
Hawaiian circuit court was filed on January 28, 1905, a date prior
to the Act of Congress referred to. But the record shows that
thereupon a petition for rehearing was filed, and that a rehearing
was denied April 29, 1905 (
see Bierce v. Hutchins, 16 Haw.
717), and that the final judgment, which was reversed by this
Court, was not rendered until May 6, 1905, a date after the law
referred to. The effect of the pending petition
Page 219 U. S. 337
for a rehearing, if filed in due time and entertained by the
court, as was the case, was to prevent the judgment from becoming
final and reviewable until disposed of.
Aspen Mining &
Smelting Co. v. Billings, 150 U. S. 31;
In re McCall, 145 F. 898. Since, therefore, there was no
final judgment prior to the going into effect of the Act of
Congress of March 3, 1905, the pending litigation was subject to
the power of Congress to allow a review after final judgment,
although no such review had theretofore been admissible. No
fundamental right was thereby denied and the bond must be regarded
as having been entered into subject to such change in remedy or
procedure as did not change the contractual rights of the
parties.
It is next claimed that this action upon the return bond was
premature because started during the pendency of the defendant's
writ of error in the Supreme Court of Hawaii from the judgment in
the replevin case. But that writ did not annul the judgment. The
Hawaiian Act of 1903, c. 32, §§ 17, 18, and 19, Rev.Laws
of Hawaii, 1905, §§ 1861, 1864, and 1865, provided for
the issuance of an execution if the defendant should be ruled to
give a new return bond upon an affidavit of insufficiency. This was
done, and the objection of the defendant overruled. An execution
issued, which was duly returned unsatisfied. The contention that
this act of 1903 did not go into force until after the execution of
the return bond has no merit. Such a bond is always entered into
subject to the possibility of changes in the law of procedure which
do not change the contract. The defendant refused to give the new
bond required, and, under the act referred to, an execution was
issued, which was returned unsatisfied. This fact authorized an
immediate suit upon the return bond. There was no error in holding
that the suit was not premature under the act referred to.
Another group of assignments relate to an alleged tender of
redelivery of the property by Hutchins, trustee, after
Page 219 U. S. 338
the judgment requiring a return. The insistence was and is that
there should have been a directed verdict for the defendant upon
the evidence showing such tender and a rejection by the plaintiff.
The letter in evidence making a tender was not an unequivocal
tender. There was also evidence tending to show the existence of
obstacles to a repossession, which it was the duty of the defendant
to have removed, and also evidence of a conveyance by the defendant
of record, which clouded the title. There was an absence of
evidence tending to show any active exertion to restore the
plaintiff's possession, and no evidence that the plaintiff was ever
actually put in repossession. The question was one for the jury,
who found for the plaintiff. The charge was full and fair.
There were a vast number of errors assigned. We have referred to
those which were either pressed in argument or have otherwise been
deemed of such importance as to require particular notice. Those
not referred to have been considered, with the result that we find
none of them well taken.
The conclusion we reach is that the judgment of the Supreme
Court for the Territory of Hawaii reversing the judgment of the
Circuit Court and directing a judgment
non obstante
veredicto was erroneous. The second judgment, affirming the
judgment of the Circuit Court upon its mandate, is also
erroneous.
The case must be remanded, with direction to set both judgments
aside and affirm the judgment of the trial court in favor of the
plaintiff, William W. Bierce, Limited.
Reversed.
