Raney v. Baron, 1 Fla. 327 (Fla. 1847)

Supreme Court of Florida
January, 1847

Raney v. Baron, 1 Fla. 327 (Fla. 1847).

DAVID G. RANEY vs. SAMUEL BARON, ADM'R OF ISAAC S. JACQUES.

ERROR to Franklin Circuit Court.

This case was tried at Spring Term, 1846, of Franklin Circuit Court, Judge Douglas presiding.

Debt on an appeal bond, of which following is copy:

TERRITORY OF FLORIDA,

Franklin County.

Know all men by these presents, that we, the Southern Life Insurance and Trust Company, and George Field and David G. Raney, are held and firmly bound unto Isaac S. Jacques in the sum of two thousand dollars, for the true payment whereof we bind ourselves, our and each of our heirs, executors and assigns, jointly and severally, firmly by these presents, sealed with our seals, and dated the seventeenth day of December, 1841.

The condition of the above obligation is such that, whereas the above bounden Southern Life Insurance and Trust Company is about to take an appeal from a judgment rendered against it at the Fall Term, 1841, of the Superior Court of Franklin county, in favor of Isaac S. Jacques, for the sum of nine hundred and ninety-two 52-100, to the Court of Appeals of said Territory: now, if the said Southern Life Insurance and Trust Company, shall pay the said damages so recovered by the said Isaac S. Jacques against it, and costs, in case the judgment of said Superior Court shall be confirmed by the said Court of Appeals, then this bond to be null and void, else to remain in full force and virtue.

(Signed)   SO. L. INS. & TRUST CO.,

BY GEORGE FIELD, President. (SEAL.)

GEORGE FIELD,     (SEAL.)

DAVID G. RANEY,     (SEAL.)

Plea: Payment.

At the trial below, plaintiff gave in evidence the following certificate:--

The People of the State of New York, to all to whom these presents shall come, or may come, send GREETINGS

Know ye, that we, having inspected the records of our Surrogate's Court, in and for the county of New York, do find, that on the twenty-third day of August, in the year one thousand eight hundred and forty-two, by David B. Ogden, Surrogate of said county, letters of administration of the goods, chattels, and credits, which were of Isaac S. Jacques, late of Woolbridge, in the State of New Jersey, grocer, deceased, were granted and committed unto Samuel Barron, of Woodbridge aforesaid, and that it does not appear by said records that said letters have been revoked.

[N. Y. Surrogate's Seal.]

In testimony whereof, we have caused the seal of our said Surrogate to be hereunto affixed. Witness David B. Ogden, Surrogate of our said county, at the City of New York, the nineteenth day of December, in the year of our Lord one thousand eight hundred and forty-two, and of our independence the sixty-seventh.

DAVID B. OGDEN.

Defendant objected to its introduction on the ground that it was not properly authenticated, according to the act of Congress; but the Court overruled the objection. Plaintiff also gave in evidence the judgment of the Court of Appeals at its session, 1843, of which the following is a copy:

"Southern Life Insurance & Trust Company, Appellant, vs. Isaac S. Jacques, Appellee.

"Upon a certificate from the Clerk of Franklin Superior Court, that a judgment was rendered at December Term, 1841, of said Court in favor of the Appellee, and that an appeal was taken and bond duly filed in the Clerk's Office:

"On motion of the appellee, by his attorney, it is ordered, that this appeal be put on the Court Docket, in its proper place: and the transcript of the record and proceedings in this cause, not having been filed according to law, and the appellants, though solemnly called, came not; therefore, it is considered by the Court, that this appeal be dismissed, and the appellee recover against the appellant ten per centum damages, for retarding the execution thereof; and also, the sum of two dollars and twelve cents, his costs, by him about his defence in this behalf expended: which is ordered to be certified to the Court below."

Defendant objected to the introduction of this judgment; but the Court overruled the objection, and permitted the paper to go to the jury. Plaintiff then gave in evidence the appeal bond herein before set forth, and an execution showing amount due thereon.

Defendant asked the Court to instruct the jury, that plaintiff is not entitled to recover the ten per cent. damages, mentioned in the decree and judgment of the Court of Appeals, as a part of his damages on the bond sued on; which instruction the Court refused, and defendant took his bill of exceptions.

The jury returned a verdict for plaintiff.

Plaintiff in Error, assigned the following for error:

1st. The Court erred in refusing to give the instructions asked for by the counsel of plaintiff in error.

2d. The Court erred in permitting the letters of administration to be offered to the jury.

3d. The Court erred in permitting the paper purporting to be a transcript of the Supreme Court, to be read to the jury.

Attorneys

W. G. M. Davis, for Plaintiff in Error.

Carmack & Baker, for Defendant.

Opinion

 [*330] MACRAE, Justice:

This is an appeal from a judgment of the Circuit Court of Franklin county, rendered in an action of debt, instituted therein by Samuel Baron, administrator of Isaac S. Jacques, deceased, against David G. Raney, as one of the sureties of the Southern Life Insurance and Trust Company, in an appeal bond executed by it to the plaintiff's intestate.

To the declaration the defendant pleaded payment, and upon the issue joined upon this plea, verdict and judgment were rendered for the plaintiff, for the sum of seven hundred and seventy dollars.

The main ground of error, set up by the plaintiff in error is, that upon the trial below, when the bond sued on was given in evidence before the jury, the Court refused to give the latter the following instruction, asked for by the defendant, viz.: "that the plaintiff is not entitled to recover the ten per cent. damages, mentioned in the decree and judgment of the Court of Appeals, as part of his damages on the bond sued on," and to this refusal the defendant excepted.

The bond executed by the appellant, in conjunction with the Southern Life Insurance and Trust Company, and declared on, must be referred to, in order to determine the extent of his liability. The condition of the bond, after reciting "that the Southern Life Insurance and Trust Company are about to take an appeal from a judgment rendered against it at the Fall Term (1841,) of the Superior Court of Franklin county, in favor of Isaac S. Jacques, for the sum of nine hundred and ninety-two 52-100, to the Court of Appeals of the Territory of Florida," concludes thus: "Now, if the said Southern Life Insurance and Trust Company shall pay the said damages recovered by said Isaac S. Jacques against it and costs, in case the judgment of said Superior Court shall be confirmed by the said Court of Appeals, then, this bond to be null and void, else to remain in full force and virtue."

The covenant of the defendant Raney is, to pay; provided, the said Company, the principal in the bond, shall not pay "the said damages so recovered by said Jacques against it," by which, we understand, is necessarily meant the sum of $ 992.52-100, before mentioned, and the costs. Such is the bond; and its obligation extends thus far, and [*331] no farther. We are, therefore, of the opinion, that the defendant below, is clearly not liable on his bond, for the ten per centum damages and costs, for which judgment was rendered by the Court of Appeals of the late Territory of Florida. It is so clear and well settled a principle that a surety is bound to the extent of the terms of his obligation and no farther, that we deem it wholly unnecessary to refer to authorities to sustain it. It may be remarked, however, that the doctrine is well and fully illustrated in the case of Miller vs. Stewart, et al. 22 U.S. 680, 9 Wheat. 680, 6 L. Ed. 189, and in 5 Pet. Cond. Rep. 772.

In this view of the extent of the appellant's liability upon the bond in question, we are of opinion that the Court below erred in refusing the instruction asked for by the defendant, as set forth in his bill of exceptions, and assigned as error as before mentioned. And here, we feel justified in observing, that had the precise terms of the condition of this bond been brought to the view of the Court below, we cannot doubt that the learned Judge who presided, would have granted the instruction prayed for. That the Nisi Prius Courts are sometimes liable thus to err unwittingly, must be admitted; and it is much to be regretted, in view of the speedy and satisfactory administration of justice, the great desideratum of both Courts and suitors.

"We have not considered it necessary to determine upon the exception taken to the proper legal authentication of the letters of administration, submitted in evidence, in this case, in the Court below. It is clear that the character in which the plaintiff sued, is admitted by the defendant's plea, and, therefore, was not required to be proved. It is consequently, not material to the right and law of the case, whether the Court erred, or not, in permitting the letters in question to be offered to the jury. It may be regarded as a work of supererogation on the part of the plaintiff's attorney, which should not prejudice his client. Be this as it may, the objection may be made in another trial of the same case below, if it can again be raised under the pleadings.

We consider it equally unnecessary to decide the third error assigned. As to the question of a remititur of damages by this Court, in the alternative which has been decided, we think it needs no discussion, considering, as we do, that it is obvious that the remititur sought for, cannot be awarded in view of the character of the verdict apparent upon the face of the record. We might remark, however, [*332] that there appears to be a blunder in the entry of this part of the proceedings.

On the whole we are of opinion, and accordingly adjudge and order, that the verdict and judgment in these case in the Court below, be set aside, and that further proceedings be had therein in accordance with this opinion.

Judgment reversed, and venire de novo.