LAMB et al. v. EWING

LAMB et al. v. EWING. (Circuit Court of Appeals, Eighth Circuit. January 27, 1893.) No. 110. 1. Federal Courts — Jurisdiction—Auxiliary Proceedings. On the expiration of a stay bond tlie lands of the surety thereon were sold on execution to satisfy tho judgment, as allowed hy the Nebraska statute, but, in view of a threatened appeal by the surety, the judgment creditor was required as a prerequisite to obtaining the money to give a bond conditioned for repayment thereof “in case the order confirming tho sale is reversed by the supreme court of the United States.” No appeal, however, was taken, but the purchaser of the land brought ejectment to recover it of the stay bondsman, and the supreme court of tho United States held that the Nebraska statute did not apply, and the sale was void. Thereupon the court ordered the judgment creditor to repay the money into court, and assigned the redelivery bond to the purchaser of the land. The order was not complied with, and thereafter the purchaser filed a petition on the bond in the samo court. Held, that this proceeding was merely auxiliary to the former suit, and the federal court had jurisdiction, irrespective of the citizenship of the parties or tho amount in controversy. S. Bonds — Condition-—Breach. The condition of the bond wos broken when tho supreme court declared the sale void, although that decision was rendered in an independent suit, and no appeal was taken from the judgment confirming the sale. ⅜ Same — Limitation of Actions. The fact that the sale was absolutely void did not operate as a breach of the condition of the bond as soon as it was given, so as to immediately set the statute of limitations running, but such breach only oc-curved at tlie time the decision of the supreme court in the ejectment suit was rendered. 4. Same — Powers oe Federal Court. As the court would have had power to order restitution when the sale was declared invalid if the proceeds thereof had remained in the court, it also had power to require the judgment creditor to give the bond for its repayment into court in the same contingency, and hence the purchaser whose money had been wrongfully appropriated to the satisfaction of the judgment could maintain a suit on the bond to recover the same. In Error to the Circuit Court of the United States for the District of Nebraska. Action by Thomas Ewing against Walter J. Lamb and Lorenzo W. Billingsley upon a bond given for the repayment of money into court. Judgment for plaintiff. Defendants bring error. Affirmed. Statement by SHURAS, District Judge: On the trial of this ease in the court below a jury was waived, and from the findings of fact mads by the court the following statement is condensed, sufficient of the material facts being stated to show the applicability of the points made by counsel in support of the errors assigned: On the 17th of November, 1S75, Charles W. Seymore and William W. Wardell recovered judgment in an action at law against William P. Young for the sum of $6,500 in the United States circuit court for the district of Nebraska. Upon tlie assumption that the provisions of the statutes of Nebraska authorizing a stay of execution upon giving security as therein provided could be availed of by a defendant in the United States courts in Nebraska, a stay bond was executed by William P. Young, with five sureties, including one Milton F. Lamaster, and filed with tlie clerk. Upon the expiration of the time of the stay of execution, as provided for by the statutes of the state, and in accordance with the provisions thereof, the clerk issued an execution against William P. Young and the several sureties on the stay bond, which writ was by the marshal levied upon certain realty belonging to Milton F. Lamaster, one of the sureties on the bond; and a sale of the property was had in due form, the same being purchased by Thomas Ewing for the sum of $5,600. Upon a report- made of this sale to the court, .the same was confirmed, and a marshal’s deed was executed and delivered to the purchaser, and an order was entered directing the marshal, upon the execution of a good and sufficient bond, to be approved by the judge or clerk, and conditioned for the repayment into court of the purchase money in case the order confirming the sale should be reversed by the supreme court, to pay to the several claimants the share due them of the money realized from the sale of the realty as stated. It further appears that by an assignment duly made by the plaintiffs in the judgment against William P. Young there had been assigned to S. W. Little and D. B. Alexander an interest therein to the amount of $2,000. It further appears that the marshal paid over to the clerk of the court the money by him collected on the execution sale of the property of Lamaster, as above stated, and for the purpose of obtaining from the clerk the amount due them as assignees of part of said judgment against Young the following bond was executed by S. W. Little and D. B. Alexander, with Walter .L.Lamb and Lorenzo W. Billingsley as sureties: “In th9 Circuit Court of the United States for the District of Nebraska. “Charles W. Seymore and William W. Wardell, Plaintiffs, vs. William P. Young, Defendant. “Bond for the Repayment of Money into Court. “Know all men by these presents that we, S. W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, of Lancaster county, state of Nebraska, are held and firmly bound unto Elmer D. Frank, clerk of the United States circuit court for the district of Nebraska, in the sum of thirty-four hundred dollars, good and lawful money of the United Slates, to T>e pawl to the said Elmer D. Frank, clerk of the United States court, as aforesaid, life executors, administrators, and assigns, for which payment, well and truly to be made, we hind ourselves, our heirs, our executors, and administrators firmly by these presents. Sealed with our seals, and dated the 3rd day oí May, A. D. 1884. Tho condition of tho above obligation is such that whereas, on the 29th day of January, A. I). 1882, Hon. Elmer S. Dundy, judge of the circuit court of the United States for the district of Nebraska, made the following order in tho above-entitled canse, then pending in said court, to wit: .‘“Seymore & Warden v. Young. 138 O. “‘It is ordered in the above case that upon giving a good and sufficient bond to the approval of tho judge or clerk, conditioned for tho repayment into court of the purchase money in case the order of confirmation in this case Is reversed by the supreme court of tho United States, the marshal pay to tho said complainant from tho purchase money received in said case to each one entitled thereto, as his or her interest may appear, bond to be given in doublo the amount of money to bo paid to any person or party entitled to the same, and tho marshal is further directed to make and deliver to the purchaser. [Signed] _ “'Elmer S. Dundy, Judge.’ “And whereas, it appears from the records of said court in said cause that S. W. Lit ¡lo and D. B. Alexander are entitled to receive the sum of $1,485 of said purchase money; and whereas, the United States marshal of said court has paid all of said purchase money into the hands of the clerk of said court, and by bim placed in the registry of said court since said order was made; and whereas, the said Elmer D. Frank, clerk of said court, has this day paid to the said S. W. Little and D. B. Alexander out of said purchase money the said sum of fourteen hundred and eighty-five dollars upon the terms of the above and foregoing order of the said court: Now if the above S. W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, shall well and truly comply with the order of said court as herein-before set forth in relation to the said sum of fourteen hundred and eighty-five dollars, received as aforesaid by tho said S. W. Little and D. B. Alexander, then this obligation to be void; otherwise to remain in full force and effect. All erasures and Interlineations made before signing.” Upon the filing and approval of this bond, tho court made an order directing the clork to pay to said Little and Alexander, out of the funds in the registry of tho court, the proportionate share coming to them as owners of tho interest assigned them in tho original judgment, and in pursuance of this order the clerk paid them the sum of $1,485. On the 17th of July, 1882, Thomas Ewing, for the consideration of ⅞5,600, sold and conveyed the realty by bim bought at the marshal’s sale to John W. Keeler, warranting his title thereto. Thereupon Keeler brought an action of ejectment in the United States circuit court for the district of Nebraska against Lamastcr, claiming title to the land through the proceedings hereinbe-fore recited, and in the circuit court obtained judgment in his favor. Tho caso was carried by writ of error to the supreme court of tho United States, and tho judgment below was reversed, the court holding that the provisions of the state statute of Nebraska, adopted in 1875, in regard to a stay of execution, including tho mode of extending the judgment against the sureties on the bond, and issuing execution against their property in case of default, not being in force when section 916 of tbo Revised Statutes of the United States was enacted, and never having been adopted by a rule of the federal court, did net, therefore, authorize the act of the clerk of the circuit court in extending the judgment against the sureties on the bond, and, as a consequence, the issuance of execution and the levy on the property of the surety, and the sale thereof, were wholly void, and conveyed no title to Ewing, the purchaser, or to his grantee, Keeler. See Lamaster v. Keeler, 123 U. S. 376, 8 Sup. CJt. Rep. 197. No direct action, by appeal to the supreme court or otherwise, was taken in the case of Charles W. Seymore and William W. Wardell to vacate or reverse tho order confirming the sale made by the marshal. Upon tlie rendition of the judgment of the supreme court, holding that the sale and deed of the realty to Ewing were wholly void, and conveyed to him no title therein, Ewing made a settlement in full with his grantee, Keeler, repaying him the sum due him under the covenants of warranty contained in the deed to him. After the mandate from the supreme court was filed in the circuit court in the case of Lam aster v. Keeler, a motion was made in the original case of Charles W. Seymore and William W. Warden v. William P. Xoung for an order directing the repayment into court of the sum of $1,485, being the amount paid out of the registry of the court to S. W. Little and D. B. Alexander; and the court, after reciting the facts at length, made an order directing that said sum should be paid into court by the parties executing the bond. It appearing to the court that Thomas Ewing was entitled, as a beneficiary, to enforce performance of the conditions of the bond herein-before set forth, the court made an order directing that said bond should be assigned and set over to said Ewing, which was accordingly done by the clerk of the court, under the seal thereof. The parties to the bond having failed to pay into court the sum ordered, or any part thereof, thereupon, on the-19th of February, 1891, a petition was filed in said circuit court of the United States by Thomas Ewing, and against the principals and sureties in said bond, in which wás recited at length the facts leading up to the execution of the bond, and the other facts herein stated, including the orders of the court made in the premises; and judgment was prayed against the parties to the bond in the sum of $1,485, interest and costs. To this petition the sureties on the bond, Walter J. Lamb and Lorenzo W. Billingsley, entered their appearance, and filed an answer thereto, wherein they denied the jurisdiction of the court, pleaded the statute of limitations, averred that the bond by them executed was taken without authority of law, and was wholly void, and that, if valid, the condition thereof had not been broken, because the order of confirmation of sale had not been taken before the supreme court in any direct proceeding, nor had the same been reversed by the supreme court. The trial court found in favor of the petitioner, and gave judgment for the sum of $1,485, interest and costs, against the sureties on the bond, to reverse which the case has been brought to this court by writ of error sued out by the sureties on the bond. Walter J. Lamb and Lorenzo W. Billingsley, (J. R. Webster, on the brief,) for plaintiffs in error. R. D. Stearns, (Stearns & Strode, on the brief,) for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and SH3RAS, District Judge. [MAJORITY — SHIRAS, District Judge,] SHIRAS, District Judge, (after stating the facts.) The objections taken to the jurisdiction of the circuit court are based upon the fact that the plaintiff and defendants below are all citizens of the state of Nebraska, and the amount in controversy is less than $2,000. If this proceeding was an independent action, unconnected with any other case in the circuit court, and in which, therefore, the jurisdiction of the court would depend upon the diverse citizenship of the parties to the petition and the amount thereby put in controversy, the lack of jurisdiction of the circuit court would be made clearly apparent. The facts shown in the record, however, prove beyond question that this proceeding is one ancillary to the original action of Charles W. Seymore and William W. Wardell v. William P. Young, and the jurisdiction of the court over that case, which is unquestioned, supports the jurisdiction over the proceedings subsequently brought upon the bond given under the circumstances hereinbefore stated. The rule is well settled that where a court rightfully takes jurisdiction over the parties and the subject-matter of a controversy it has the right not only to render judgment in the first instance, but also to secure to the prevailing party the fruits of such judgment, and the original jurisdiction is a continuing one for that purpose; and as corollaries io the genera! rule it ⅛ also equally well settled that, where third parties have rights in or claims to property taken into, Hie possession of the court under process issued against the original parties, such third parties may intervene in the proceedings for the: protection of their rights; and, further, that where the process of tide court is wrongfully and illegally used to the injury of a third party, the latter may appeal to the court for proper redress. If the federal courts were deprived of the power to protect third parties against injuries resulting from the enforcement of process issuing from such courts by reason of the citizenship of the injured party, or because the amount of the injury was less than $2,000, it would work great hardship upon the individual citizen, and be a most serioius blot upon the system of federal jurisprudence. The power of ihe courts of the United States in these particulars is as ample as that of the courts of the states, and the technical question of jurisdiction is solved by the ruling that in all ancillary or auxiliary proceedings for the enforcement of judgments rendered, and ⅛ proceedings for the protection of the rights of third parties, the jurisdiction is supported by that of the original action or suit. Minnesota Co. v. St. Paul Co., 2 Wall. 609; Wiswall v. Sampson, 14 How. 52; Freeman v. Howe, 24 How. 450; Gumbel v. Pitkin, 124 U. S. 146, 8 Sup. Ct. Rep. 379; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. Sep. 27; Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. Rep. 523. The next question presented by the errors assigned is that arising on the plea of the statute of limitations, the contention of the plaintiffs in error being that the right to sue upon the bond accrued as soon as it was executed, for the reason that it has been decided that the judgment upon which the land was sold was void, and not merely voidable. The purpose of the bond was to secure the repayment into court of the money received from the sale of the realty in case it should be determined by the supreme court that the sale could not stand. If the question of the validity of the sale had never been carried in any mode to the supreme court, and Ewing’s claim to the land had never been questioned, certainly no ground for demanding the repayment of the money into court would then have existed, and it corté inly would not have boon in accordance with justice for1 the court to compel the repayment of the money into court, so long as Ewing’s title to the land remained undisputed. So long, also, as the question of the validity of the sale of the realty to Ewing was in fact pending before the supreme court, no action could have been mainiained on the bond, because, according to its terras, the court had no right to demand repayment unless the order of confirmation of the sale of the realty should be reversed by the supreme court It w as not, therefore, until lhat court decided the question, of the invalidity of the sale of the realty that any right of action accrued on the bond given to secure the repayment into court of the money derived from tbe sale of tbe realty, and, as tbe petition against plaintiffs in error was filed and service tbereon was bad witbin tbe statutory period, dating from tbe rendition of tbe judgment of tbe supreme court, wbicb settled tbe invalidity of tbe sale of tbe realty, it follows that tbe plea of tbe statute cannot be sustained. A further defense is based upon tbe claim tbat tbe bond itself is void, and tbat its execution and delivery created no obligation against the parties signing tbe same. Tbe contention of plaintiffs in error is that when an execution issues upon a judgment at law, and tbe officer, by an execution sale of real estate, collects a sum of money to be applied in satisfaction, in whole or in part, of tbe judgment, tbe court has not tbe power to require of tbe judgment creditor, as a condition of tbe payment of tbe money to him, tbe execution of a bond for tbe return of tbe money in case tbe judgment is reversed or is held void. Counsel for plaintiffs in error cite a number of authorities wbicb sustain tbe proposition tbat at execution sales of realty tbe rule caveat emptor applies, and tbat in case of a failure of title tbe purchaser cannot look to the judgment creditor for reimbursement. These are cases wherein tbe judgment debtor bad no interest in tbe property levied on, and therefore, in fact, tbe purchaser took nothing by bis purchase. In tbe case now before us, tbe realty levied on and sold.was in fact tbe property of tbe judgment debtor, Lamaster; and, if tbe judgment upon wbicb tbe process issued bad not been wholly void, tbe purchaser would have acquired title. Tbe rule of caveat emptor, invoked by plaintiffs in error, is not applicable to a case like that now under consideration. It is well settled tbat if a judgment upon wbicb an execution has issued and has been returned satisfied is subsequently reversed, tbe plaintiff therein will be compelled to account for the property or money wbicb be may have received by reason of tbe judgment which is reversed. In such cases, there is not a failure of tbe title of tbe judgment debtor to tbe property levied on, but a failure in tbe right of tbe judgment creditor to demand anything by reason of bis judgment, either by way of future satisfaction thereof or by way of retaining any money or property wbicb be may have obtained in tím past. Tbe right to restitution in case of a reversal of tbe judgment cannot be gainsaid, tbe only question being as to tbe mode applicable to the facts of tbe particular case. Bank of U. S. v. Bank of Washington, 6 Pet. 8; Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. Rep. 528. If tbe money paid through tbe marshal into tbe registry of tbe court by tbe defendant in error was still in tbe registry, could there be any possible question of tbe duty of tbe court in tbe premises? Tbe plaintiffs in error certainly could not claim it as judgment creditors, for their judgment is reversed, and adjudged to be wholly void. Lamaster could not claim it, for be never bad any interest in it or right to it, nor does it represent bis property. Clearly tbe only one to whom it could be rightfully paid would be tbe defendant in error, Ewing; and certainly, under tbe supposed circumstances, tbe court, upon motion or petition of Ewing, would order tbe money to be paid to him. It is said by tbe supreme court in Fuel Co. v. Brock, supra, that “the power is inherent in every court, whilst the subject of controversy is in its custody, and the parties are before it, to undo what it had no authority to do originally, and in which it therefore acted erroneously, and to restore, as far as possible, the parties to their former position. Jurisdiction to correct what; had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal.” Therefore, when the supreme court held that the circuit court had no jurisdiction to extend the judgment in the case of Charles W. Seymore and William W. Wardell v. William P. Young against Lamaster, nor to issue execution against his property, it became the duty of the circuit court to restore the parties, if possible, to their former position, and undo all that had been wrongfully done in the attempted enforcement of the void judgment. If the circuit court had exacted from the judgment creditors a bond which bound them in terms to return the money collected on their judgment in case the title of Lamaster failed to the land sold to Ewing, then the authorities cited on behalf of plain tiffs in error would be applicable, because then the question would be whether the judgment creditors could be compelled to return the money paid by the purchaser; and, if no such obligation would rest upon the judgment creditors in the absence of a bond to that effect, it may be that the exaction of a bond would be held to be nugatory, and the bond itself to he void. We, however, are not called upon to determine this question, as it is not presented by the record now before us. In the present case the judgment to satisfy which tire money was paid into court, and by the court to the judgment creditors, has been held to be wholly void. It thus appears that they have received, by means of the process of the court, issued without authority, a sum of money to which they are not entitled. It is their duty to make restitution of the money thus wrongfully received by them. The terms of the bond, read in the light of its attending circumstances, do not impose upon the principals in the bond any duty or obligation greater than that which would exist against them in the absence of the bond. In fact, when the judgment creditors, S. W. Little and D. B. Alexander, received from the registry of the court the money collected on the judgment extended against La-master, the law imposed upon them the duty and implied obligation to repay the money in case the judgment in their favor should prove to ho invalid and void. Tnese parties were nonresidents of the state of Nebraska» It was known to the circuit court, and then appeared upon its records, that the validity of the judgment against Lamaster was denied, and steps were being taken to carry the question to the supreme court. When, under these circumstances, the court was asked to pay out the money in its hands, it was at onee apparent that by so doing the court, in the event the judgment was held void, would he deprived of the power to cause restitution to be made to the proper parties, because both the fund and the parties might he beyond its control. To avoid this, the court required the parties to execute the bond in question, whereby thev became bound to repay tbe money in case tbe judgment against Lamaster should be beld to be void, and tbus tbe court continued its power to compel restitution to be made in case tbe right thereto should arise. We find nothing in the action of the circuit court in this particular which was illegal in itself, or which imposed upon the judgment creditors burdens of such a nature as to render the bond of no effect. As a further and final defense it is claimed by plaintiffs in error that the condition of the bond has not been broken; that, as sureties, they are entitled to stand upon the very letter of the obligation signed by them, and cannot be called upon for the repayment into court of the purchase money, unless it is shown that the order of confirmation of the sale of the realty to Ewing has been reversed by the supreme court, which it is claimed has not been done. It is a settled rule that the liability of a surety is not, by implication or by a strained construction of the terms of the contract of suretyship, to be extended unfairly. The surety has the right to stand upon the terms of the contract entered into by him. In determining, however, the true intent and meaning of the contract of suretyship, the same general rules of construction are applicable that obtain in construing other written instruments. As is said in Brandt, Sur. § 80: “The rules for construing the contract of a surety or a guarantor should by no means be confounded with the rule that sureties and guarantors are favorites of the law, and have a right to stand upon the strict terms of their obligar tions. There is no legal prohibition against entering into a contract of surety-ship or guaranty. For any contract which it is legal to make it is legal that a surety or guarantor shall become responsible. In the construction of the contract of a surety or guarantor, as well as of every other contract, the true question is, what was the intention of the parties, as disclosed by the instrument, read in the light of the surrounding circumstances? The contract of the surety or guarantor being just as legal as that of the principal, there is no good reason for holding that, in arriving at the intention of the parties, one set of rules shall govern when the principal and another when the surety or' guarantor is concerned.” In Benjamin v. Hillard, 28 How. 149, 164, it is said: “The general rule is to attribute to the obligation of the surety the same extent as that of the principal. Unless from the terms of the contract an intention appears to reduce his liability within more narrow bounds, a restriction will not be imposed by construction contrary to the nature of the engagement. If the terms of his engagement are general and unrestricted, and embrace the entire subject, (omnem causam,) Ms liability will be measured by that of the principal, and embrace the same accessories and consequences, (connexoram et dependentium.) It will be presumed that he had in view the guaranty of the obligations his principal had assumed.” In Read v. Bowman, 2 Wall. 591, 603, the rule is stated a-? follows; “Defendants are right in supposing that a surety may stand upon the very terms of Ms contract; that he will be discharged if any alteration is made in Ms agreement without Ms knowledge or consent, wMch prejudices Mm, or wMch amounts to the substitution of a new agreement for the one he executed. But sureties are.as much bound by the true intent and meaning of their contracts wMch they voluntarily subscribe as principals. They are bound in the manner, to the extent, and under the circumstances as they existed when the contract was executed.” What, llien, is the construction to be placed on the terms of the bond executed by plaintiffs in error, reading the same in the light thrown thereon by the circumstances existing when the bond was executed, and which in fact called it into existence. A fund was under the control of the court, realized from the sale of certain realty under process issued by the court. The validity of the sale was contested. The circuit court had sustained the sale, but the parties proposed to carry the question to the suj>reme court for final adjudication. If the circuit court had retained the money realized from the sale until the validity of the sale had been finally settled, it would then have been within the power of the court, and it clearly would have been its duty, to cause the money in the registry to be paid to the party entitled thereto. Instead, however, of retaining the money in the registry of the court, it was ordered that any claimant thereof might receive the share to which he was apparently entitled by giving a bond to the court, with sureties, conditioned to repay the sum by him received in case the order of confirmation should be reversed by the supreme court. It is entirely clear that the bond was intended to take the place of the money, and that it was the purpose thereof to enable the court to compel the repayment into court of the sum paid out in case the supreme court should reverse the decision of the circuit court upon the question of the validity of the sale. It is said in argument that the condition of the bond has not been broken, because the invalidity of the sale of the realty has not been adjudged in a direct appeal from the order of confirmation. This is not the requirement of the bond in express terms. The order of the court, which is recited in the bond, is to the effect that the bond shall be “conditioned for the repayment into court of tne purchase money in case the order of confirmation in this case is reversed by the supreme court of the United States.” 2fo particular mode of carrying the question of the confirmation of the sale before the supreme court is named, nor was it a matter which was within the control of any of the parties to the bond. The mere method adopted was therefore wholly immaterial, so long as it compassed the purpose of submitting for decision to the supreme court the question upon which the duty of repayment of the money depended. If the money was still in the registry of the circuit court, could it be successfully contended that it was not the duty of that court to order the repayment thereof to the defendant in error simply because the invalidity of the sale had been adjudged in the ejectment suit, and not in a direct appeal from the order of confirmation? This would certainly be sticking in the bark. By the decision of the supreme court, in the ejectment proceedings based upon the supposed title created by the sale in question it was judicially and finally determined that the entire proceedings against lamas ter in the circuit court, including the sale of his property, were wholly void for want of jurisdiction. The issuance of the execution, the levy thereof, and the sale of the property and the order confirming the sale, were all held to be void acts; not voidable, but wholly void. Under such circumstances, it is useless to argue that to create a duty to repay the money according to the terms of the bond it was necessary to enter a formal order reversing the confirmation of the sale. The decision and judgment of the supreme court in the ejectment suit had set aside and reversed the sale and the ordér confirming it by holding the same to be wholly void, and thereupon it became the duty of the circuit court to undo as far as possible all the wrong that had resulted from its mistaken action. It likewise became the duty of the principals in the bond to repay into court the sum of money which had been wrongfully paid them. The terms of the bond, fairly construed, bound them for this repayment. The obligation they had assumed in giving the bond was that, if the supreme court should reverse the confirmation of the sale of Lamaster’s property, they would repay the money realized from such sale. The order of confirmation was most effectually reversed by the ruling of the supreme court that the whole proceeding against Lamaster was void and of no effect, and the obligation of the principals in the bond to repay into court the money wrongfully paid them became fixed according to the terms of the bond; and when the court called upon them for repayment of the amount by them received, as was done by the order entered December 2¾ 1890, and the principals in the bond failed to make such payment, then the condition of the bond was broken, and a right of action existed against the sureties for such default on part of their principals. We have thus considered the substantial points made on behalf of the plaintiffs in error, and, finding them without merit, the judgment of the circuit court is affirmed.