Solomon Dehydrating Company, Incorporated, Appellant, v. Clarence R. Guyton, Appellee, 283 F.2d 247 (8th Cir. 1960)

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US Court of Appeals for the Eighth Circuit - 283 F.2d 247 (8th Cir. 1960) October 18, 1960

Dryden & Jensen, Kearney, Neb., and Charles Paine, Grand Island, Neb., for the motion in behalf of appellant.

Schrempp & Lathrop and Henry C. Rosenthal, Jr., Omaha, Neb., in opposition to the motion of appellant.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.


As an incident of its appeal to this Court from a judgment rendered against it, appellant seeks by motion to have us discharge or reduce the amount of the attachment, which had been made against it on its non-resident status, under Neb. R.R.S.1943, § 25-1001, in the relationship thereof to the redelivery bond which had been executed by appellant in substitution for and restoration of the property.

The motion is predicated on the ground that supersedeas has been made of the amount of the judgment for purposes of the appeal, and that there accordingly is no need or right to a continuance of the attachment security.

In its granting and fixing of the amount of supersedeas under Rule 73(d), Federal Rules of Civil Procedure, 28 U.S.C.A., the District Court had ordered that the attachment redelivery bond should remain in effect until final termination of the action. This it had the authority and discretion to do, since under Rule 73(d) the supersedeas security would have application only in case of the affirmance or a modification of the judgment appealed from. Should the judgment be reversed or vacated, no immediate security would exist as to any future judgment which might be rendered in appellee's favor, except the attachment redelivery, bond, in the significance which that fact could have in the circumstance of appellant's non-resident status.

The trial court necessarily was called upon to exercise its judgment and discretion in relation to these realities, and no facts are made to appear which would entitle us to say that it has been guilty of an abuse. The court would have had the right in fixing supersedeas to take into account, if it chose, the amount of security existing from the attachment, under the implication of the provisions of Rule 73(d) that "When the judgment is for the recovery of money not otherwise secured, the amount of the (supersedeas) bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a different amount of orders security other than the bond". But appellant chose to accept and provided the amount of supersedeas which the court fixed, and in relation to which the court further directed that the attachment redelivery bond should remain in effect until the final termination of the litigation.

Appellant's motion to have us discharge or reduce the amount of the attachment redelivery bond is in the circumstances without any legal or equitable basis for us to examine the discretion which the trial court was entitled to exercise, and it is accordingly denied.