UNITED SURETY CO. v. AMERICAN FRUIT PRODUCT CO 238 U.S. 140 (1915)

Messrs. Wade H. Ellis, R. Golden Donaldson, Charles Cowles Tucher, and Abner H. Ferguson for plaintiff in error. [238 U.S. 140, 141]   Messrs. George E. Hamilton, John W. Yerkes, and John J. Hamilton for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a suit originally brought by the defendant in error against the Semmes-Kelly Company in the supreme court of the District to recover $ 10,596.45 for goods sold. There was an attachment of a stock of goods that were worth much more than the judgment finally recovered, but never were formally appraised, and the next day the plaintiff in error, as surety to the Semmes-Kelly Company, signed an undertaking to release the property attached, in the form provided in the District Code, 454 [31 Stat at L. 1261, chap. 854]. By that instrument it in terms submitted to the jurisdiction of the court and undertook 'to abide by and perform the judgment of the court in the premises in relation to said property, which judgment may be rendered against all the parties whose names are hereto subscribed.' By 455, if the judgment goes for the plaintiff 'it shall be a joint judgment against both the defendant and his surety or sureties in said undertaking for the appraised value of the property.' After a second trial, judgment was entered against the Semmes-Kelly Company and the plaintiff in error for $9,937.90, that sum being found to be far less than the value of the property, as we have said. 40 App. D. C. 239.

The jurisdiction of this court is invoked upon a contention that the above 454 and 455, as applied, deprive the plaintiff of its property without due process of law. In American Secur. & T. Co. v. District of Columbia, 224 U.S. 491 , 56 L. ed. 856, 32 Sup. Ct. Rep. 553, it was held that the right to re-examine a judgment of the court of appeals, given by the Judicial Code, 250 [36 Stat. at L. 1159, chap. 231, Comp. Stat. 1913 , 1227],-'Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant,'-was confined to the construction of laws having general application throughout the United States. But [238 U.S. 140, 142]   in the same case it was left open whether the 3d clause, 'Cases involving . . . the constitutionality of any law of the United States,' did not have a wider meaning, and that suggestion is relied upon for the present attack upon the two sections of the District Code.

There is no occasion to discuss it in this case. That a man may contract to be bound by a judgment in which he has no right to be heard, and that a statute may authorize him to make himself a party to such a judgment, was decided, if it needed a decision, in Beall v. New Mexico, 16 Wall. 535, 21 L. ed. 292. It is argued that there is a difference if the value of the property is not appraised, but fixed by the court. But there is nothing to hinder a man from assenting to that as well as to the rest if the statute permits it. The suggestion that there is a constitutional difficulty has no foundation. It is true that the section of the Code speaks only of appraised value, but if by a reasonable construction appraisal is held to be a superfluous form when there is no question that the property attached is worth much more than the judgment, the omission must be taken to have been contemplated by the surety when he signed. The constitutional point is a mere pretext put forward in order to open other questions that otherwise could not come here. That pretext is not allowed to succeed (Goodrich v. Ferris, 214 U.S. 71, 79 , 53 S. L. ed. 914, 917, 29 Sup. Ct. Rep. 580), and therefore we shall not deal with the attempt to obtain a reversal of the decision upon a construction of the local statute by the local court, not so manifestly absurd as to extend the surety's liability in a way that could not have been foreseen, or matters of local practice, such as holding that when the first verdict against the Semmes- Kelly Company and a joint judgment were set aside and the case put on the trial calendar, on the motion of the plaintiff in error, 'as against' it, the whole judgment was annulled.

Writ of error dismissed.