Welch & Co. v. Thorn

Martin, J.,

delivered (he opinion of the court.

The plaintiffs instituted their suit for damages in one of the district courts of the state, and held the defendant (o bail. The latter being a citizen of another state or alien, procured the removal of the suit to the Federal court, on giving-the usual bond. He brought and filed the transcriptin the latter court, but failed to give special bail, as required by the condition of his bond, and the plaintiffs on their own motion, obtained a judgment dismissing the suit, at the costs of the defendant.

The effect of rights of the parties to them, vhich «ire required by law to ciaf'Veproceedteftedbj^thelaw directing them penaltySof the bond is fixed by court,a"andr the the object for ■which it is given, there being nó proceedings”between the law d?ctio^mof^our naity^f^ju^-uond isdisjudgment given agesthe wMch the party_ has really sustained. a gben by0a dafendant, on removing a suit from the state United ^States thaf he waíTto appear and put and'he^ileíto which the plaintiffdismissedhis Wsaotíon onThe thathecouidnot recover, because he had not proceeded to judgment in his suit, and did not show that he had sustained any damages.

*196 The present suit-is brought, on this bond ; and the breach 0f the condition assigned, is the failure to give special bail in the Federal court. The bond is for the penalty of twelve thousand and five hundred dollars; and the condition expressed therein, is that the defendant shall file copies of the proceedings in the suit in the slate court, before the first day 0f the next session of the Federal court, holden at Opelousas, ' * ' “ and, there enter special bail” We have lately had occasion to say, that in bonds which are required by law, in judicial proceedings, the rights of the parties ought to be tested by the laws which require those bonds. In conventional the penalty may be well considered as the measure °f the damages which the party failing to comply with his part of the contract was bound to pay. In legal proceedings, the penalty of the bond is fixed by the law, or by the cotirL or judge, and never by the agreement of the parties. In the other states of the Union, where the common law prevails, when courts of law give judgment for the Penahy of a bond, the defendant may resort to a court of equity, if the plaintiff attempts to enforce his execution for more lhan the amount of the damages which he is equitably entitled to. In this state, there being no distinction in the proceedings between the law and equity jurisdiction of our courts, the penalty of a bond like this is disregarded, and judgment is given for the damages which the party has really sustained. "

The damages which the present plaintiffs may have, in oul' opinion, sustained, are those which result from (he breach of the condition assigned ; to wit, the failure to enter . special bail in the Federal court. The defendant appeared there, by counsel, who filed an answer for him ; and the Plaintiff might have proceeded to trial and judgment, if they had not thought fit. to be satisfied with a judgment of dismissal at the defendant’s cost. Had they proceeded to final judgment on the merits, and one rendered in their favor, the amount of the damages which they might recover on the bond could not exceed the sum for which they had judgment, interest and costs: and if the judgment was for the *197 .defendant, the plaintiffs could have no claim on the bond ; for the breach of its condition did not cause them any damage.

The plaintiffs cannot say that the judgment which was given is not such a one as they were entitled to, for they provoked it, and made no attempt to obtain any other. That judgment put an end to the suit and gives them nothing but their costs. They have not shown to us what those costs are ; and we cannot notice them. Their bond, however, is «ill in force to cover the costs.

The District Court did not, in our opinion, err in giving judgment for the.defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.