LAMB V. EWING.
THAYER, District Judge. This is a motion to dismiss the writ of error. The motion proceeds upon the ground that the interests of all the parties to the litigation have become merged by a sale which has recently been made by the defendants in error of all their interest in the property which is in controversy. After an examination of the record in the case and the affidavits that were read on the hearing of the motion, we have reached the conclusion that the motion is well founded. As the case stands since the sale of the Nebraska City Distillery to the Distilling & Cattle Feeding Company, or to its representative, we are satisfied that there is no real controversy be: tween any of the parties to the litigation. We have no doubt that a decision in favor of the plaintiff in error would inure to the benefit of the recent Durchaser under the defendants in error, and it is ob· vious that a contrary decision would have the same effect. Under these circumstances it is of no importance that the defendants in error have given their vendee an indemnity against costs. Where the same person has practically become the plaintiff and the defend· ant, we will not further entertain the proceeding, although some third party is interested in the question of costs. In obedience to · the following authorities: Wood-Paper Co. v. Heft, 8 Wall. 333, 336; East Tennessee, V. & G. R. Co. v. Southern Tel. Co., 125 U. S. 695, 8 Sup. Ct. Rev. 1391: and Little v. Bowers, 134 U. S; 547, 557, 10 Sup. Ct. Rep. 620.-the writ of error should be dismissed, and it is so ordered.
LAMB et al. v. EWING. (CIrcuIt Court of Appeals, Eighth Circuit. January 27,1893.)
FEDERAL COURTS-JURISDICTION-AuXILIARY PROCEEDINGS.
On the expiration of a stay bond the lands of the surety thereon w"re sold on execution to satisfy the judgment, as allowed by the Nebraska statute, but, in view of a threatened appeal by the surety, the judgment creditor was required as a prerequisite to obtalntng the money to give a bond conditioned for repayment thereof "in case the order confirming the sale is reversed by the supreme court of the United States." No appeal, however, was taken, but the purchaser of the land brought ejectment to recover it of the stay bondsman, and the supreme court of the United States held that the Nebraska statute did not apply, and the sale was void. Thereupon the court ordered the judgment creditor to rep,ay the money into court, and assigned the redelivery bond to the purchaser of the land The order was not complied with, and thereafter the purchaser filed a petition on the bond in the same court. Held, that this proceeding was merely auxllilU"Y to the former suit, and the federal court had jurisdiction, irrespective of the citizenship of the parties or the amount in controversy. The condition of the bond was broken when the supreme court declared the sale Void, although that decision was rendered in an independ· ent suit, and no appeal was taken from the judgment confirming the sale. The fact that the sale was absolutely void did not operate as a breach of the condition of the bond as soon as it was given, so as to immediately set the statute of limitations running, but such breach only Oc-
SAME-LIMITATION OF ACTIONS.
FEDERALREPORTER t vol. 54.
curred at the time the decisIon of the supreme court·. in the ejectment sult was rendered.
As the court would have ,had power to order restitution when the sale was declared invalid If the proCeeds thereof had remained in the court, it. also had power to requlre the judgment creditor to give the bond for its repayment into court in the same contingency, and hence the pur. chaser whose money .had wrongfully appropriated to the satisfaction of the jUdgment Could' mafutaln a sult on the bond to recover the
SAME-POWERS OF FEDERAL COUR'I'.
In Error to the Gircuit Court of the United States for the District 'of Nebraska. Action by Thomas Ewing against Walter J. Lamb and Lorenzo W. Billingsley upon a' bond given for the repayment of money into court. Judgment for plaintiff. Defendants bring error. Affirmed. Statement by SHIRA-S, District Judge:
On the trial of this case in the court below a jury was waived, and from the ftndlngs of fact by the court the following. statement is condensed, BUftl.clent of the mate$! facts being stated to show the appllcabDity of the points. made by counseJ..in support of the errors assigned: On the 17th of November, 1875, Charles W. Seymore and William W. Wardell · recovered in an action at law against William P. Young for the sum ot $6,500 in the United' Statesclrcult court for the district of Nebraska. Upon theassnmption that the provisions of the statutes of Nebraska authorizing a stay pf execution; upon glvlngsecurtty as therein provided could be avaUed' 'of by a defendant ttl the United States courts in Nebraska, a stay bond was executed by William P. Young. with five sureties, including one Milton F. Lamaster, and filed with the clerk. Upon the expiration of the time of the stay of execution, as provided for by the statutes of the state, and In accordance with the provisions thereof, the clerk issued all executlonagainst W1lllaJ,A P. Young and the several sureties on the stay bond, wl),icb writ was by the marshal levied upon certain realty belonging to ?rillton F. Lamaster, one of the iJureties on the bond; and a sale of the property was had In due form, the sam.e being purchased by Thomas Ewing for the sum of $5,600. Upon a report made of this sale to the court, the same was confirmed, and a. marshal's deed was executed aud delivered to the purchaser,· :and .an order was entered directing' the marshal, upon the execution ot & gOOd and suftl.clent bond, 'to be approved by the judge or clerk, and conditioned for the repllyment into court of the purchase money In case the order confirming the lIIle should be reversed by the supreme court, to pay to the several claimants the shm due them of the money realized from the sale <it the realty as stated. It further appears that by an assignment duly made by the plaintitrs in the judgment against W1lllam P. Young there had been aSSigned to S. W. Little and D. B. Alexander an Interest therein to the amount· of $2,000. It further appears that the marshal paid over to the clerk ot the court the money by him collected' on the execution sale of the property of Lamaster, as above stated, and for the purpose of obtlllning trom the clerk the amount due them as assignees of part of said judgment aguiI1st YOung the following bond was executed byS. W. Little and D. B. Alexander, With Walter .J.Lamb and J.JOrenzo W. as sureties: "In the Clrcult Court ot the Unlted States for the District of Nebraska. "Clull'k'S W. Seymore and William W. Wardell, Plaintiffs, vs. William P. Young, Defendant. "Bond for the Repayment of Money into Court. ''Know all men by thelile presents that we, S. W. Little and D. B. Alexander, Rll principals, lUld W. J. Lamb and L. \V. Bllllngsley, as sureties, of J"ancaster County, state of Nebraska, are held and firmly bound unto Elmer D. Frank, clerk of the United States clreult euurt for the district of Nebraska, in the· sum 'ot thirty-four hundred dollars,; good and lawful money of the United'
LAMB V. EWIlS'G.
States, to he paid to the said Elmer. D. Frank, clerk of the United States court, as aforesaid. bis executors, adJ;l1inistrators, and assigilS, for which payment, well and truly to be made. we bind ourselves, our heirs, our executors, and administrators firmly by these presen1ll. Sealed with our seals, and dated the 3rd day of May, A. D. 1884. The condition of the above obligation 18 such that whereas, on the 29th day of January, A.. D. 1882, Hon. Elmer S. Dundy, judge of the circuit court of the United States for the district of Nebraska, made the following order in the above-entitled cause, then pending In said court, to wit: .. 'Seymore & Wardell v. Young. 138 O. .. 'It Is ordered in the above case that upon giving a good and sufilc1ent bond to the approval of the judge or clerk, conditioned for the repayment into court of the purchase money In case the order of confirmation in this case Is reversed by the supreme court of the United States, the marshal pay to the said complainant from the purchase money received In said case to each one entitled thereto, as his or her Interest may appear, bond to be given In double thl\ amount of money to be paid to any person or party entitled to the same, and the marshal is further directed to make and deliver to the pm·chaser. S. Dundy, Judge.' [Signed] "And wherelUl,it appears from the records of said court in said cause thatS. W. Uttle and D. B. Alexander are entitled to receive the sum of $1,485 of said purchase money; and whereas, the United States marshal of said court ba8 paid all of said purchase money into the hands of the clerk of said court, and by him placell in the registry ·of said court since said order was made; and whereas, the said Elmer D. Frank, clerk of said court, has this day paid to the said S. W. Little and D. B. Alexander out of said purchase money the said sum of fourteen hundred and eighty-five dollars upon the terms ot the above and foregoing order of the said court: Now if the above S. W. Little and D.B. .Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, shall well and truly comply with the order of said court as hereinbefore aet forth in relation to the said sum of fourteen hundred and eighty-five dollars, received as aforesaid by the said S. W. Little and D. B. Alexander, then this obligation to be void; otherwiae to remain in full force and etrect. All erasures and interllneations made before signing." Upon the tlllng and approval of this bond, tho court made an order directing the clerk to ray to scid Little and Alexander, out of the tunds in the registry ot the court, the }:roportionate share coming to them as owners of the interest assigned them in the original judgment, and in pursuance of this order the clerk paid them the sum of $1,485. On the 17th of July, 1882, Thomas Ewing, for the consideration of $5,600, sold and conveyed the realty by bim bought at the marshal's sale to John W. Keeler, warranting his title thereto. Thereupon Keeler brought an action of ejectment in the United States circuit court for the district of Nebraska ag-alnst I.amaster, claiming title to the land through the proceedings hereinbefore recited, and in the circuit court obtained judgment in bis favor. Tho case was carried by writ of error to the supreme court of the United States, and the judgment below WlUl reversed, the court holding that the provisions of the state statute of Nebraska, adopted in 1875, in regard to a stay of execution, including. the mode of extending the judgment against the sureties on the bond, and Issuing execution against their property in case of default, not being in force when section 916 of the Revised Statutes of the United States was enacted, and never having been adopted by a rule of the federal court, did nc-t, therefore, authorize the act of the clerk of the circuit court in extending the judgment against the sureties on the bond, and, as a consequence, the issuance of execution and the levy on the property of the surety, and the sale thereat, were wholly void, and conveyed no title to Ewing, the purchaser, or to his grantee, Keeler. See Lamaster v. Keeler, 123 U. S. 376,8 Sup. Ot. Rep. 197. No direct action, by appeal to the supreme court or otherwise, Wll8 taken in the case of Charles W. Seymore and William W. Wardell to vacate or reverse the order conftrm1ng the &ale made by the marshaL
'Upon the rendition of the judgment of the supreme court, holding that the sale aIid deed of the realty to Ewing were wholly void, and conveyed to him no title therein, Ewing made a settlement in full with his grantee, Keeler, him the sum due him under the covenants of warranty contained in the deed to him. After the mandate from the supreme court was filed in the clrcuit court in the case of Lamaster v. Keeler, a motion was made in the origlna1 case of Charles W. Seymore and Wllliam W. Wardell v. Wllliam P. Young for an order directing the repayment into court of the sum of $1,485, being the amount paid out of the registry of the court to S. W. Little and D. B. .Alexander; and the court, after reciting the facts at length, made an order directing that said sum should be paid into court by the parties executing thebC?nd. It appearing to the C()urt that Thomas Ewing was entitled, as abenellciary, to enforce performaI],ce of the conditions of the bond heremset forth, the court made an'oroer directing that said bond should be assigned and set over to said E-wlpg, whic1l was accor(1ingly done by the cle'l'kof the court, under tlle seal tlie,teQf. '1'he. parties to the bond having failed to pay into court the sum ordered, or any' part thereof, thereupon, on the 19th of FebruarY, 1891, a petition was filed 1ri. said circuit court of the United States by Thomas Ewing, and against the principals and sureties in said bond, in whic1l was recited at length the facts leading up to the execution of the bond, and the other facts herein stated,. incl,uding the orders of the court made in the premises; and judgment was prayed against the parties to the bond in the sum of $1,485, interest and costs. To thlspetition the sureties on the bond, Walter J. Lamb and Lorenzo W. Billingsley, entered their appearance, and filed an answer thereto, Wllerein they denied the juriSdiction of the court, pleaded the statute of limitations, averred that the bond by them executed was taken without authority of law, and was wholly void, and that, if valid, the condition thereof had not been broken, because the order of confirmation of sale had not been taken' before the supreme c.ourt in any direct proceeding, nor had the same been reversed by the supreme court. The trial court found in favor of the petitioner, and gave judgment for the sum of $1,485, interest and costil, against the sureties on the bond, to reverse which the case has been brought to this court by writ of Arror sued out by the sureties on the bond.
Walter J. Lamb and Lorenzo W. Billingsley, (J. R. Webster, on the brief,) for plaintiffs in error. R. D. Stearns, (Stearns & Strode, on the brief,) for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and SnmAS, District Judge. SHIRAS, District Judge, (after stating the facts.) The objections taken to the jurisdiction of the circuit court are based upon the fact that the plaintiff and defendants below are all citizens of the state of Nebraska, and the amount in controversy is less than $2,000. If this proceeding was an independent action, unconnected with any other case in the circuit court, and in which, therefore, the jurisdiction of the court would depend upon the diverse citizenship of the parties to the petition and the amount thereby put in controversy, the lack of jurisdiction of the circuit court would be made clearly apparent. The facts shown in the record, however, prove beyond question that this proceeding is one ancillary to the original action of Charles W. Seymore and William W. Wardell v. William P. Young, and the jurisdiction of the court over that case, which is unquestioned, supports the jurisdiction over the proceedings subsequently upon the bond given under the circumstances hereinbefore
The rule is well settled that where a court rightfully takes jurisdiction over the parties and the subject-matter of a controversy it has the right not only to render judgment in the first instance, but also to secure to the prevailing party the fruits of such judgment, and the original jurisdiction is a continuing one for that purpose; and as corollaries to the general rule it is also equally well settled that, where third parties have rights in or claims to property taken into the possession of the court under process issued against the original parties, such third parties may intervene in the proceedings for the protection of their rights; and, further, that where the process of the court is wrongfully and illegally used to the injury of a third party, the latter may appeal to the court for proper redress. If the federal courts were deprived of the power to protect third parties against injuries resulting from the enforcement of process issuing from such courts by reason of the citizenship of the injured party, or because the amount of the injury was less than $2,000, it would work great hardship upon the individual citizen,. and be a most serious blot upon the system of federal jurispru,Ience. The power of the courts of the United States in these particulars is as ample as that of the courts of the states, and the technical question of jurisdiction is solved by the ruling that in all ancillary or auxiliary proceedings for the enforcement of judgments rendered, and in proceedings for the protection of the rights of third parties, the jurisdiction is supported by, that of the original action or suit. Minnesota Co. v. St. Paul Co., 2 Wall. 609; Wiswall v. Sampson, 14 How. 52; Freeman v. Howe, 24 How. 450; Gumbel v. Pitkin, 124 U. S. 1463 8 Sup. Ct. Rep. 379; Krippendorf v. Hyde, 110 U. So 276, 4 Sup. Ct. Rep. 27; Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. Rep. 523. The next question presented by the errors assigned is that arising on the plea of the statute of limitations, the contention of the plaintiffs in error being that the right to sue upon the bond accrued as soon as it was executed, for the reason that it has been decided that the judgment upon which the land was sold was void, and not merely voidable. The purpose of the bond was to secure the repayment into court of the money received from the sale of the realty in case it should be determined by the supreme court that the sale could not stand. If the question of the validity of the sale had never been carried in any mode to the supreme court, and Ewing's claim to the land had never been questioned, certainly no ground for demanding the repayment of the money into court would then have existed, and it certainly would not have been in accordance with justice for the court to compel the repayment of the money into court, so long as Ewing's title to the land remained undisputed. So long, also, as the qnestion of the validity of the sale of the realty to Ewing was in fact pending before the supreme court, no action could have been maintained on the bond, because, according to its terms, the court had no right to demand repayment unless the order of conftrmation of the sale of the realty should be reversed by the supreme It was not, therefore, until that court decided the question of the invalidity of the sale of the I:ealty that any right of action accrued on the bond given to secure the repayment into court of the money v.54F.no.2-18
derived·· frdm the sale of the realty, and, al!l the petition against plaintiffs in error was filed and service thereon was had within the statutory period, dating from the rendition of the judgment of the supreme court, which settled the invalidity of the sale of the realty, it follows that the plea of the statute cannot be sustained. A further defense is based upon the claim that the bond itself is void, and that its execution and delivery created no obligation against the parties signing the same. The contention of plaintifl'R in error is that when an execution issues upon a judgment at law, and the officer, by an execution sale of real estate, collects a sum of mdney to be applied in satisfaction, in whole or in part, of the judgment, the court has not the power to require of the judgment creditor, as:a condition of the payment of the money to him, the execution of a' bond for the return of the money in case the judgment is reversed or is held Counsel for plaintiffs in error cite a ber ot: authorities which sustain the proposition that at execution sales of the rule caveat emptor and that in case of a fanureof title the purchaser cannot look to the judgment creditor for reimbursement. These are cases wherein the judgment debtor had no interest in the property levied on, and therefore, in fact, the purchaser took nothing by his purchase. In the case now before 11S, the realty levied on and sold was in fact the property of the judgment debtor, Lamaster; and, if the judgment upon which the process issued had not been wholly void, the purchaser would have acquired title. The rule of caveat emptor, invoked by plaintiffs in error, is not applicable to a case like that now under consideration. £t is well settled that if a judgment upon which an execution has issued and has been returned satisfied is subsequently reversed, the plaintiff therein will be compelled to account for the property or money which he may have received by reason of the judgment which is In such cases, there is not a failure of the title of the judgment debtor to the property levied on, but a failure in the right of the judgment creditor to demand anything by reason of his judgment, either by way of future satisfaction thereof or by way of retaining;anymoney or property which he may have obtained in tbp past. . The right to restitution in of a reversal of the judgment cannot be gainsaid, the only question being as to the mode applicable to the facts of the particular case. Bank of U. S. v. Bank of Washington, 6 Pet. 8; Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct.Rep. 523. If the money paid through the marshal into the registry of the court by the defendant in error was still in the registry, could there be any possible question of the duty of the court in the premises? The plaintiffs in error. certainly could not claim it as judgment credo itors, for their judgment is reversed, and adjudged to be wholly void. Lamaster could not claim it, for he never had any interest in it or right to it, nor does it represent his property. Clearly the only onete> whom it could be rightfully paid would be the defendant in error, Ewing; and certaiDly, under the supposed circumstances, the court, upon motion or .petition of Ewing, would ordel." the money to be paid to him. It is said by the supreme court in
Fuel Co. v. Brock, supra, that "the power is inherent in every court, whilst the subject of controversy is in its custody, and the parties are before it, to undo what it had no authority to do originally, and in which it therefore acted erroneously, and to restore, as far as possible, the parties to their former position. Jurisdiction to correct what had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal." Therefore, when the supreme court held that the circuit court had no jurisdiction to extend the judgment in the case of Charles W. Seymore and William W. Wardell v. William P. Young against Lamaster, nor to issue execution against his property, it became the 'duty of the circuit court to restore the parties, if possible, to their former position, and undo all that had been wrongfully done in the attempted enforcement of the void judgment. If the circuit court had exacted from the judgment creditors a bond which bound them in terms to return the money collected on their judgment in case the title of Lamaster failed to the land sold to Ewing, then the authorities cited on behalf of plaintiffs in error would be applicable, because then the question would be whether the judgment creditors could be compelled to return the money paid by the purchaser; and, if no such obligation would rest upon the judgment creditors in the absence of a bond to that effect, it may be that the exaction of a bond would be held to be nugatory, and the bond itself to be void. We, however, are not called upon to determine this question, as it is not presented by the record now before us. In the present case the judgment to satisfy which the money was paid into court, and by the court to the judgment creditors, has been held to be wholly void. It thus appears that they have received, by means of the process of the court, issued without authority, a sum of money to which they are not entitled. It is their duty to make restitution of the money thus wrongfully received by them. The terms of the bond, read in the light of im attending circumstances, do not impose upon the principals in the bond any duty or obligation greater than that which would exist against them in the absence of the bond. In fact, when the judgment creditors, S. W. Little and D. B. Alexander, received from the registry of the court the money collected on the judgment extended against Lamaster, the law imposed upon them the duty and implied obligation to repay the money in case the judgment in their favor should prove to he invalid and void. 11lese parties were nonresidents of the state of Nebraska.. It was known to the circuit court, and then appeared upon im records, that the validity of the judgment against Lamaster was denied, and steps were being taken to carry the question to the supreme court. When, under these circumstances. the court was asked to payout the money in its hands, it was at once apparent that by so doing the court, in the event the judgment was held void, would be deprived of the power to cause restitution to be made to the proper parties, because both the fund and the parties might be . beyond its control. To avoid this, the court required the parties to execute tb,e .bond in question, whereby the,
became bound to repay. the money in case the judgment agabist Lamaster should be held to· be void, and thus the court continued its power to compel restitution to be made in case the right thereto ehould arise. We find nothing in the action of the circuit court in this particular which was illegal in itself, or which imposed upon the judgment creditors burdens of such a nature as to render the bond of no effect. As a further and final defense it is claimed by plaintiffs in error that the condition of the bond has not been broken; that, as sureties, they are entitled to stand upon the very letter of the obligation lligned by them, and cannot be called upon for the repayment into court of the purchase money, unless it is shown that the order of oonfirmation of the sale of the realty to Ewing has been reversed by the supreme court, which it is claimed has not been done. It is a settled rule that the liability of a surety is not, by implication or by a strained construction of the terms of the contract of suretyship, to be extended unfairly. The surety has the right to stand upon the terms of the contract entered into by him. In determining, however, the true intent and meaning of the contract of suretyship, the same general rules of construction are applicable that obtain in construing other written instruments. As is eaid in Brandt, Sur. § 80:
"Therwes for construing the contract of a surety or a guarantor should by no means be confounded with the rule that sureties and guarantors are favorites of the law, and have a right to stand upon the strict tetms of their obligations. There is no legal prOhibition against;entering into a contract of suretysbip or guaranty. For llllY contract which It is legal to' make it is legal that a surety or guarantor shall become responBible. In the construction of the contract of a surety or grtil.rantor, as well as of every other contract, the true question is, what was the intention of the parties, as disclosed by the instrument,reacI in the light of the surrounding circumstanceS? The contract of the surety or guarantor being just as legal as that of the principal, there is no good reason for holding that, in arriving at the intention of. the parties, one set of. rules. shall govern when the principal and another when the surety or guarantor is concerned."
In Benjamin v. Hillard, 23 How. 149, 164, it is said:
,"The general rule Is to attribute to the obligation of the surety the same extent as that of the pl'lncipal Unless from the terms of the contract an intention appears to reduce his liability within more narrow bounds, a restriction will not be imposed by construction contrary to the nature of the engagement. 11' .the terms of his engagelIlentare general and unrestricted, and embrace the entire subject, (omnem causam,) his liability will be measured by that of the principal, and embrace the same accessories and consequences, (connexoramet dependentium.) It will be presumed that he had in view the guaranty of the obligations his prlncipalhad aBS)lllled."
In Read' v·. Bowman, 2 Wall. 591,603, the rule is stated
right In supposing surety may stand upon the very terms of hi8:contract; that he wlll be. discharged if any alteration is made in his agreelrient without his knowledge or'· consent, which prejudices him, or which amounts to the substitution of a new agreement for the one he executed. But sureties are as much bOund by the true intent and meaning of their contracts which they voluntarily subscribe asprinclpals. They are bOund in the manner, to the extent, and under the circumstances as they existed when the contract was executed."
"'nat, then, is the construction to be placed on the terms of the bond executed by plaintiffs in error, reading the same in the light thrown thereon by the circumstances existing when the bond was executed, and which in fact called it into existence. A fund was under the control of the court, realized from the sale of certain realty under process issued by the court. The validity of the sale was contested. The circuit court had sustained the sale, but the parties proposed to carry the question to the supreme court for final adjudication. If the circuit court had retained the money realized from the sale until the validity of the sale had been finally settled, it would then have been within the power of the court, and it clearly would have been its duty, to cause the money in the registry to be paid to the party entitled thereto. Instead, however, of retaining the money in the registry of the court, it was ordered that any claimant thereof might receive the share to which he was apparently entitled by giving a bond to the court, with sureties, conditioned to repay the sum by him received in case the order of confirmation should be reversed by the supreme court. It is entirely clear that the bond was intended to take the place .of the money, and that it was the purpose thereof to enable the court to compel the repayment into·court of the sum paid out in case the 8upreme conn should reve]jse the decision of the .circuit court upon the question of the validity of the sale. It is said in argument that the condition of the bond has not been broken, because the invalidity of the sale of the realty has not been adjudged in a direct appeal from the order of confirmation. This is not the requirement of the bond in express terms. The order of tht> court, which is recited in the bond, is to the effect that the bond shall be "conditioned for the repayment into court of roe purchase money in case the order of confirmation in this case is reversed by the supreme court of the United States." No particular mode of carrying the question of the confirmation of the sale before the supreme court is named, nor was it a matter which was within the control of any of the parties to the bond. The mere method adopted was therefore wholly immaterial, so long as it compassed the purpose of submitting for decision to the supreme court the question upon which the duty of repayment of the money depended. If the money was still in the registry of the circuit court, could it be successfully contended that it was not the duty of that court to order the repayment thereof to the defendant in error simply because the invalidity· of the sale had been adjudged in the ejectment suit, and not in a direct appeal from the order of confirmation? This would certainly be sticking in the bark. By the decision of the supreme court in the ejectment proceedings based upon the supposed title created by the sale in question it was judicially and finally determined that the entire proceedings against Lamaster in the circuit court, including the sale of his property, were wholly void for want of jurisdiction. The issuance of the execution. the levy thereof, and the sale of the property and the order confirming the sale, were all held to. be void acts; not voidable, but wholly void. Under such circumstances, it is useless to argue that to create a duty
to repa;y;dhe money according to the tellmS of the bond it was neceBsal'y Jto . . enter a formal order reversing the confirmation of the sale. The decision and judgment of the supreme court in the ejectment suit had set aside and reversed the sale and the order confirming it by holding the same to be wholly void, and thereupon· it became the duty of the circuit court to undo as far as possible all the wrong that had resulted from its mistaken action. It likewise became. the duty of the· principals in the bond to repay Into court the sum of money which had been wrongfully paid them. The terms of the bond, fairly construed, bound them for this repayment.. : The obligation they had assumed in giving the bond wall that,if the supreme court should reverse the confirmation of. the sale of, Lamaster's property, they would repay the money realized from such sale. The order of conftrmation was most effectually reversed by the ruling of the supreme court that the whole proceeding against Lamaster was void and of no effect, and the obligation of the .principals in the ·bond to repay into court the money wrongfully paid them became· fixed according to the terms of the bond; and when the court called upon them fO:f repayment of the amount by them received, as was done by the order entered December 22, 1890, and the principals in the bond ·falled to make such payment, then the condition of the bond was broken, and aright of action existed against the sureties for such default· on part· of their principals,. ' We:have thus considered the substantial points made on behalf of the pla.tiffs in error, and, :fi.ndingthem without merit, the judgment of the Circuit court is affirmed.
BURROW v. KANSAS CITY, FT. S. & M. R. CO. (Clrcu1t Court, W. TenneS$OO. February 27, 1893.)
I . · · ,I
No. 3,1141. COsTs....TuATION-WITNJCfl8 FEES;
A party In a federalQOurt can only recover liS costs the actual amount ot fees witness, and only to the extent of .the amount legally due such witness; and where he has paid some witnesses more and some less than thelr legal fees, the legal fees of all cannot :bEl" grouped together to make the sum equal the amount paid to all
Where a witness in a federal court, who lives in another state more than 100 miles away,and therefore cannot be served with SUbpoena, voluntarily attends in good faith. on the requtlst of a party who deemed bis testimony material,such witness Is entitled to the usual fees and to mileage for 100 miles; .but not to mileage for any distance beyond 100 miles.
At Law.. Action by :viola W. :Burrow agamst the Kansas City. Ft. Scott & 1d:emphis nailroad Company. Heard on motion to retax costs. .Granted. by HAMMOND, J.:
ThIs .WlIJI an action at law a.galmrt; a foreign corporation for damages claimed by plaintiff from the defendallt for. negligently causing the death of her hUl!oband in. ArklUlsas, and it resulted in a verdlct.in the .defendant'8 favor with judgment ·for· costs against the pJa!ntiff and tIle surety on ller $25()