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U.S. Supreme Court

William M. Bierce, Ltd. v. Waterhouse, 219 U.S. 320 (1911)

William M. Bierce, Ltd. v. Waterhouse

No. 508

Argued December 12, 1910

Decided January 16, 1911

219 U.S. 320


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"


"Clinton J. Hutchins, Trustee"


"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

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