Los Angeles herald., 1892-03-12
SUPREME COURT.
A Number of Decisions Re-
ceived Yesterday.
Several Important Cases Finally
Disposed Of.
Some Interesting Points in Kellogg
vs.. Hewes.
The Question OF Bond-wilson vs.. Lat
tin-People VS.. Juan Mesa-Siebler
VS.. LoOk-The Points
Involved.

Clerk Ashmore of the supreme court
yesterday received the following opin-
ions in Los Angeles county cases:
Kellogg ct al, appellants, Vs. Howes
ct al, respondents-The judgment in
the case of Kellogg vs. Howes was
affirmed here in November, 1889.
Howes, the appellant therein, procured
writ of error to the supreme court of
the United States, and gave super
sedeas bond in the sum of $4,000, with
respondents Bonebrake and Bryson as
sureties. The condition of the bond is
that "if the above named F. G. Howes
shall prosecute his said writ OF error
with effect, and answer all costs and
damages, if he shall fail to make good
his plea, then this obligation shall be
void; otherwise" etc. A citation was
issued requiring the defendants in error
to show cause before the supreme court
at Washington on the second Monday
in October, 1890, why the judgment
should not be corrected. On May %,
1890, said court, upon motion of defend"
ants in error, dismissed the writ, on the
ground that the court had no jurisdic-
tion OF the action. The clerk of the
supreme court of the United States
attached to the mandate diminishing the
writ memorandum of costs, amount
ing to $160 50 and as soon as the man.
date was filed here, Howes paid the
amount of the judgment, with interest
thereon, and the bill of costs, but re-
fused to pay other items of costs and
damages claimed by plaintiff. There
upon, and after demand was made upon
the sureties, this action was commenced
to recover the sum OF 500.
The court below gave judgment for
defendants, and plaintiff appealed. We
think the condition named in the bond
should be given the same construction
by this court that is placed
upon it by the supreme
court of the United States-the court
that framed it. The parties who exc.
cuted the bond presumably entered into
the Undertaking with a knowledge OF
the construction which had been placed
upon it by the national courts, and in
the belief that their obligation would
be measured by such construction. The
fact that the supreme court held no fed
eral question was involved cannot
change the. obligation of the sureties.
A writ of error had been allowed by the
chief justice of the court, supersedeas
bond was required, and the liability of
the sureties depended upon the question
whether Howes would be able to prose-
cute his writ with effect" and make
good his plea;" it did not depend upon
the reasons which might be given for
holding the writ to be without effect.
If the court had held that federal
question was involved, and had affirmed
the judgment, the damages claimed
could not have been recovered. The
dismissal of the writ had the same
effect as to costs and damages.
By the dismissal the plaintiff in error
simply failed to prosecute his said
writ OF error with effect" or ito make
good his plea" The costs, if proper
items of cost to be allowed at all, should
have been taxed up as such. The term
costs has we'll known meaning, and
whatever costs are claimed and recovered
must be taxed in the action in which
they are allowed; until taxed they can
not be recovered as damages in an inde-
pendent action on the undertaking on
appeal. Judgment on appeal.
EIEhoON,
Wilcox ct al, respondents vs.. Latin,
appellants-Action for the recision of
an agreement for the purchase of GER
tain real estate. The plaintiffs and the
defendant made an agreement August
20, 1887, by which the defendant agreed
to convey to the plaintiffs tract OF 100
acres of land in the county of Los An
geles for $4,000, OF which plaintiffs
were to pay $4,000 before the expira-
tion of six months, and $4,000 in one
year, and $40,0 900 before the expiration
of eighteen months from date of said
agreement; and the plaintiffs executed
to the defendant their several promis-
sorry notes for these amounts. The
agreement also contained clause that
plaintiffs should subdivide and place all
land on the market within thirty days
from date of agreement and apply pro-
ceeds on aforesaid notes.
Under this agreement plaintiffs
within thirty days subdivided the land
and placed it on the market, and sold
portions amounting to $25, 900, applying
the proceeds on the notes. In January,
1888, an adverse claim was made by GER
tain parties to one half of the entile
tract and an action commenced. in the
Los Angeles superior court. Judgm ment
was given them awarding them one-half
of said land. 1t is alleged in the COM
plant, and also found by the court, that
''by reason OF said defendant, plaintiffs
were prevented making further sales of
said lands" After institution of said
suit defendant represented to plaintiffs
there was nothing in the claim, and
that he would establish his title in the
suit; and after the Judgment had been
rendered he represented to them that
he would appeal therefrom and
thus settle and establish his
title. On September l2, 1888.
plaintiffs notified defendant that on ac-
count of the failure of title he recinded
the contract, and at the same time ten
dered him deed OF conveyance for all
right and title in said lands, and all
moneys arising from sales made there
of, and demanded a surrender OF their
notes. Defendants refused to accept the
deed, thereupon plaintiff brought this