# Lamaster v. Keeler

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United States Supreme Court
123 U.S. 376
Lamaster v. Keeler
Error to the Circuit Court of the United States for the District of Nebraska.
This case comes before us from the circuit court for the district of Nebraska. It is an action of ejectment to recover a parcel of land in the city of Lincoln, state of Nebraska. The plaintiff below, the defendant in error here, traces title to the premises from a purchaser at a sale under an execution issued upon a judgment, extended by the clerk of the court so as to include certain sureties, and among them the defendant below. The contention of the defendant is that the extension of the judgment so as to include him was unauthorized and void, and that the execution and sale thereunder of his property was therefore without any force or validity.
The facts of the case, so far as it is necessary to state them for the disposition of the contention of the defendant below, are briefly these: On the twelfth of November, 1875, Charles W. Seymour and William Wardell, as plaintiffs, recovered a judgment in the circuit court of the United States for the district of Nebraska, against one William P. Young, as defendant, for $6,500, and costs. The defendant in that case, Young, being desirous of staying execution upon this judgment, obtained a bond, as the undertaking is termed, signed by five parties, of whom Lamaster, the plaintiff in error, was one, in which, after reciting the judgment recovered, they acknowledged themselves 'security for the defendant for the payment of the judgment, interest, and costs, from the time of rendering said judgment until paid, to be paid nine months from the rendering the same.' Attached to this instrument was an affidavit of justification of all the parties signing it except Lamaster. Originally, his name was signed to the affidavit, but he had it cut off before the instrument was presented to the clerk. It is unnecessary to state the circumstances under which this was done, or the effect of it (if any it had) upon his liability, as the case will be determined on other points.
The bond, so called, was approved by the clerk of the court, on the second of December, 1875, and filed; and thereupon he made in one of the books of record of the court, called 'Judgment Index of the Court,' the following entry: 'Defendants, Lamaster, M. F., et al., surety; plaintiffs, Seymour and Wardell, appearance. Docket 6 No. 138; date of judgment, November 12, 1875; amount of judgment, $6,500.' This entry was made by the clerk under the impression that the statute of Nebraska of February 23, 1875, entitled 'An act to provide for stay of executions and orders of sale,' was the law governing the stay of executions upon judgments in the circuit court of the United States. The third section of the statute provides for a stay of execution for a period of nine months, upon judgments, for the recovery of money only, (with certain exceptions not material in this case,) on condition that the defendant shall, 'within twenty days from the rendition of judgment, procure two or more sufficient freehold sureties to enter into a bond, acknowledging themselves security for the defendant for the payment of the judgment, interest, and cost from the time of rendering judgment until paid.'
The other sections which bear upon the questions involved are the following:
'Sec. 4. Officers approving stay-bonds shall require the affidavits of the signers of such bonds that they own real estate, not exempt from execution and aside from incumbrances, to the value of twice the amount of the judgment. * * *'
'Sec. 6. The sureties for the stay of execution may be taken and approved by the clerk, and the bond shall be recorded in a book kept for that purpose, and have the force and effect of a judgment confessed from the date thereof against the property of the sureties, and the clerk shall enter and index the same in the proper judgment docket as in the case of other judgments.'
'Sec. 9. At the expiration of the stay, the clerk shall issue a joint execution against the property of all the judgment debtors and sureties, describing them as debtors or sureties therein.' See Laws Neb. 1875, p. 49.
Upon the assumed sufficiency of the bond of the sureties, and of the above entry in the judgment index under the statute of Nebraska, the clerk, on the fourteenth of April, 1881, issued an alias execution to the marshal of the district, commanding him as follows: 'That of the goods and chattels, and for want thereof, then of the lands and tenements of William P. Young, debtor, and John I. Irwin, Jane Y. Irwin, W. T. Donovan, Milton F. Lamaster, and Nathan F. Mofft, sureties, in your district, you cause to be made the sum of four thousand seven hundred forty-four and 31-100 dollars, being the balance due April 2, A. D. 1881, on the judgment of the circuit court of the United States for the District of Nebraska, at the November term thereof, in the year 1875, by which Charles W. Seymour and William W. Wardell recovered against the said William P. Young, with interest thereon from the second day of April, A. D. 1881, until paid, together with the further sum of _____, costs of increase on said judgment, and also the costs that may accrue on this writ. And have you the said moneys before the clerk of the said circuit court, at the city of Omaha, in said district, within sixty days, to be paid to the persons entitled to receive the same.' Under this execution, the premises in controversy, being a lot in the city of Lincoln, was, on the seventeenth of May, 1881, sold to one Thomas Ewing for the sum of $5,600. A motion to set aside the sale having been denied, and the sale confirmed, the marshal's deed of the premises was made to the purchaser, and he conveyed them to the plaintiff.
The petition, the designation given to the first pleading, in the system of procedure in civil cases in force in Nebraska, sets forth the title of the plaintiff under the execution and sale mentioned, the detention of the premises by the defendant, and the receipt by him of the rents and profits to the amount of $3,000, and prays judgment for the possession of the premises and for the rents and profts. The defendant pleaded that rents and profits. The defendant pleaded that the purchaser at the execution sale, to the plaintiff, was colorable and collusive, for the purpose of enabling the latter to commence and maintain an action for the recovery of the property in the circuit court of the United States. And in answer to the petition the defendant denied the validity of the bond, the extension of the judgment against him, and the proceedings thereunder; and also set up the pendency in the state court of a suit for the determination of his title to the premises.
Two trials of the case were had, which is permissible in actions of ejectment under the laws of Nebraska. On the first, the verdict of the jury was for the defendant; on the second they found that the conveyance by the purchaser at the marshal's sale to Ewing, the plaintiff herein, was 'merely colorable and collusive, and was made for the purpose of creating a case cognizable in the federal court, and the plaintiff was not the real party in interest, but that the action was being prosecuted for the use and benefit of Ewing, and that Keeler is only a nominal and colorable party.' This verdict being set aside by the court, a third trial was had, which resulted in a general verdict for the plaintiff, under the instructions of the court. The question raised on the trial, and decided by the court, upon the instrutions refused and those given, related to the validity of the proceedings taken by the clerk upon the bond of the sureties, to authorize execution against their property, and the sale of the premises.
The defendant requested the court to instruct the jury that the statute of Nebraska respecting the stay of executions and orders of sale, approved February 23, 1875, 'was not operative to authorize the execution against Lamaster's property;' but the court refused the instruction, and charged the jury as follows: 'That the filing of defendant's bond with the clerk of the court, and its approval by him, and his approval of the sureties thereto, including the defendant, the record of the same, the entry of memoranda thereof in the judgment index, called in the statute 'extending the judgment,' justified the issue by the clerk of the court of an execution upon the judgment of Seymour and Wardell against Young and others, directed to the marshal, commanding him to make the balance due upon the judgment out of the property of the principal and sureties, including that of the defendant, Lamaster, and the sale by the marshal of the defendant's property under and by virtue of the execution, was authorized by law.' And again, 'that when the bond was taken by the clerk, as shown in evidence, and when the proceedings were taken thereon leading to the sale by the marshal of the property in question, the statute of this state, passed on the twenty-third of February, 1875, and entitled 'An act to provide for stay of executions and orders of sale,' was in force in the court, and was a law therein, the same as in the district courts of the state.' And the court further instructed the jury to find a general verdict for the plaintiff. To the refusal of the court to give the instruction requested, and to the instructions given, the defendant at the time excepted.
The jury found a verdict for the plaintiff; and to review the judgment entered thereon the defendant has brought the case here on a writ of error.
On the thirtieth of December, 1876, and not before, the circuit court of the United States for the District of Nebraska made the following order: 'Ordered, that the laws of the state of Nebraska, now in force, regulating the issuing of executions and of the proceedings to be had thereon and thereunder, be, and the same are hereby, adopted as the rule of procedure to enforce the collection of judgments in the United States circuit and district courts for said state.'
W. C. Goudy, Geo. W. Doane, John F. Dillon, for plaintiff in error.
J. M. Woolworth, for defendant in error.
[Argument of Counsel from pages 381-387 intentionally omitted]
Mr. Justice FIELD, after stating the the case, delivered the opinion of the court, as follows:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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