Nelson v. Moloney

Citations

• 174 U.S. 164
• 19 S. Ct. 622
• 43 L. Ed. 934
• 1899 U.S. LEXIS 1491

Syllabus

<p>O’Brien being arrested in the State of New York for larceny, Nelson induced Moloney to join him in becoming O’Brien’s bondsman, and gave Moloney a mortgage on his (Nelson’s) real estate in New York to the amount of $10,000, to indemnify him. O’Brien having defaulted in his appearance for trial, Moloney was sued upon the bond, and a judgment was recovered against him, which was wholly paid by him. Before paying it he brought suit against Nelson to recover the amount for which he was so liable, and obtained a judgment in his favor in the trial court, which was reversed in the courts above on the ground that, as, at that time he had paid nothing on the forfeiture, no recovery could be had. . In appealing from the trial court in that case he entered into the usual stipulation that, if the judgment appealed from should be affirmed, judgment absolute might be rendered against him. He then brought this suit to foreclose the mortgage. Meanwhile Nelson had transferred the property mortgaged to one Adams. The defendant contended that the stipulation given by the plaintiff on the appeal to that court in the prior action was a bar to the recovery in this action; and that the bond and mortgage having been given to indemnify bail in a criminal case, they were void because contrary to public policy. But the Court of Appeals held: (1) That the contention that the stipulation operated to prevent a recovery was without support in authority or reason; and (2) That it was not a part of the public policy of the State of New York to insist upon personal liability of sureties, and forbid bail to become indemnified. Held:</p> <p>(1) That these conclusions involved no Federal question;</p> <p>(2) That under the circumstances described in the opinion of the court, the proceedings in relation to the removal of the cause afforded no ground for the issue of the writ of error;</p> <p>(3) That, following Missouri Pacific Railway v. Fitzgerald, 160 U. S. 556, the state court having proceeded to