Summary
In Elliott v. Elliott, 36 Atl. 951, Vice Chancellor Reed held, where the condition of the bond was in the form provided for by the rules, that after final decree, and even after a bond given to comply with the final decree, the bond on ne exeat was not superseded, and suit might be brought upon it.
Summary of this case from Ksiazek v. KsiazekOpinion
03-10-1897
ELLIOTT v. ELLIOTT.
Alexander Grey, for petitioner. Howard Carrow, for William A. McCully. J. W. Wartman, pro se.
Bill by Annie E. Elliott against Charles H. Elliott. Plaintiff petitions the court for leave to prosecute two bonds given in the course of the action.
Alexander Grey, for petitioner.
Howard Carrow, for William A. McCully.
J. W. Wartman, pro se.
REED, V. C. This is a petition for leave to prosecute two bonds. The facts set out in the petition are these: The petitioner filed a bill against her husband for maintenance in June, 1890. A writ of ne exeat against her husband, the defendant, was awarded in that suit, and on July 15, 1890, the defendant executed a ne exeat bond to David Baird, sheriff of Camden county, with William A. McCully and John W. Wartman as sureties. The condition of the bond conformed to rule 192 of the court of chancery. Its language is: "That if the defendant shall cause his appearance to be entered in the suit, and continue such appearance by solicitorof this court residing in the state, and shall at all times render himself amenable to the orders and process of this court pending the suit, and to such process as shall be issued to compel the performance of the final decree therein, and will appear before this court, or any officer thereof, when so required by the order of this court, the obligation to be void; otherwise to remain in full force and effect." The petition then sets out the following facts: The cause was heard upon pleadings and proofs on February 2, 1891, and it was decreed that the defendant should pay to the complainant, the petitioner herein, the sum of three dollars each week from the date of the decree, for her support and maintenance. Defendant gave a bond in pursuance of the order of the court in the sum of $250, conditioned that the defendant should perform the requirements of such decree, for maintenance. On January 6, 1892, the complainant presented a petition to this court, setting forth that the defendant had refused to comply with the decree respecting maintenance, and thereupon, on February 6, 1893, an order was made upon the defendant to show cause why he should not be attached, which order was returnable on February 13, 1893. Before the return of such order, the defendant sold all of his personal property in this state, and he left the state, and failed to appear to answer the said order. Another petition was subsequently filed to sequester certain real estate belonging to the defendant, which real estate was, upon such proceeding, sold, and the proceeds thereof, together with the rents therefrom, were applied to the payment of the weekly amount which had been awarded to the petitioner for her maintenance. The prayer of this petition is that the petitioner have leave to proceed on the ne exeat bond, as well as the bond given for maintenance. Two answers have been filed to this petition,—one by Mr. Wartman, one of the sureties on each of these bonds; and the other by Mr. McCully, a surety on the ne exeat bond. One point is taken in both answers. This point is that the condition of the first bond was satisfied by the acceptance of the second bond. The solution of the question thus raised must rest upon the condition of the ne exeat bond, and whether the defendant has failed to perform any of the requirements of such condition. The second bond is treated by the defendant as a final performance of the decree that the husband should pay during successive weeks the sum of three dollars each week. Now. the giving of the bond conditioned that the defendant should pay that sum was in no sense a payment of the sum, but merely a collateral security that it would be paid. If the defendant failed to pay, and the second bond was prosecuted, and the $250 recovered, that sum would have been only a payment pro tanto. Thereafter the defendant would remain liable to continue the weekly payment, and, if he failed to do so, would clearly be amenable to punishment upon attachment for disobedience of the judicial order to pay. Now, I am unable to see why the defendant was not liable on this proceeding, without any enforcement of the bond. The order said that he should pay. The fact that third parties agreed to stand as sureties that he would pay did not in the least relieve the defendant from his obligation to make the payments. It only furnished an additional remedy by which the complainant could secure the benefit of the decree. It is in the highest degree equitable that the process of the court should be used to compel payment before the sureties are compelled to respond for his dereliction. In my judgment, the first bond was not superseded by the execution of the second bond. That bond, therefore, remaining in force, the next query is, has its condition been kept? Now, the condition of the bond is not that he will pay, but it is that he shall render himself amenable to the process of the court, which may issue to compel him to pay. Now, he has not rendered himself amenable to the process of the court. It is true that the petition is not very specific in its statement of the steps taken on the rule to show cause why he should not be attached for failing to obey the order to pay the amount ordered for maintenance. It does not state whether a service of the rule to show cause was ever made. But, taking the petition and answers together, I think it sufficiently appears that the defendant left the state for the purpose of avoiding service, or, if served, refused to appear in response to the rule to show cause, and purposely kept himself beyond the reach of this court, and so did not render himself amenable to its process. In regard to the bond for maintenance, Mr. Wartman, in his answer, raises the further point that this bond is not properly under the control of this court, and that it was filed in the office of the clerk in chancery by inadvertence. But, as I understand the matter, the bond was not a voluntary bond, but was given in pursuance of an order made in this court in the suit for support. It is therefore as much within the control of this court as any other bond taken in the course of a proceeding in chancery. It also appears that the condition of this bond has not been kept.
Another question was presented upon the argument, namely, whether this court would retain the proceedings upon the bond, and thus settle the extent of the liability of the obligors, or would content itself with a mere permission to the petitioner to sue the bonds in a court of law. I think, in this respect, a line of distinction must be drawn between the two bonds. In the case of Wauters v. Van Vorst, 28 N. J. Eq. 103, Chancellor Runyon, on a petition for an order that the sheriff assign a ne exeat bondsaid: "It is for this court to say whether there has been a breach of the condition or not. It is for the court to say whether the bond shall be prosecuted or not. Musgrove v. Medex, 1 Mer. 49; Utten v. Utten, Id. 51. In the cases cited on a breach of a ne exeat bond the court ordered the amount of penalty to be paid into court by the sureties, thus adjudicating upon the whole subject." But in the case of Easton v. Railroad Co., 26 N. J. Eq. 359, Vice Chancellor Van Fleet held that the question of liability upon an Injunction bond given in a suit in this court was purely a matter of legal cognizance in the default of a stipulation by the parries that the damages were to be ascertained in such manner as the chancellor should direct. In view of these adjudications, the court will retain control over the enforcement of the liability of the obligors on the ne exeat bond. In regard to the bond for maintenance, the petitioner will be permitted to take it from the files of the court for the purpose of its prosecution at law. After the result of that prosecution is ascertained, and if the petitioner fails to recover any sum, or if the sum recovered is exhausted in the payment of the unpaid weekly allowance, the petitioner can apply for an order of this court directing the obligors upon the ne exeat bond to pay the amount named as the penalty therein into this court.