Eichhorn v. Brewer , 755 P.2d 660 ( 1988 )

MEMORANDUM OPINION

OPALA, Justice.

The prevailing appellees moved for summary judgment against the sureties on su-persedeas bond. Their motion is sustained and judgment is granted.¹

I

CRITICAL FACTS PERTINENT TO THE PROCEEDINGS FOR SUMMARY JUDGMENT

The trial court gave judgment to the appellees on December 28,1983. Appellees then posted on May 21, 1984 a supersedeas bond in statutory form. That undertaking secures the judgment in the amount of $5,700.00, plus interest and costs; its penal sum is $12,000.00. A November 6, 1984 postjudgment order taxed against the appellant an attorney’s fee of $14,525.00 “as costs” in the case. On December 4, 1984 the appellant filed an “Amendment To [Su-persedeas] Bond”. It covers “all court costs incurred in connection with said appeal, or any judgment entered in the lower court.” [Emphasis added.]

The Court of Appeals affirmed the trial court’s judgment. The appellees then moved for summary judgment against the sureties on supersedeas bond as amended. The issue before us is whether the amendment operates to increase the original undertaking’s penal sum, making the sureties’ obligation coextensive with the appellant’s total adjudicated liability. We answer in the affirmative.

II

THE BOND’S AMENDMENT IS VALID AND ENFORCEABLE AS A COMMON-LAW BOND

A supersedeas bond may be amended with the surety’s consent.² An amendment that does not conform strictly to statutory requirements is not invalid per se. ³ It may still be effective and enforceable as a common-law bond, if it was given voluntarily, upon consideration, and for a purpose neither prohibited by statute nor one contrary to public policy.⁴ When the obligor’s intent is apparent, the amendment should be held enforceable and given effect, unless it is so defective and vague that its purpose cannot be ascertained.⁵

The appellant did not file the critical amendment in question until after the attorney’s fees award had been made against him. The amendment could serve no apparent purpose other than to protect from execution the November 6, 1984 post-judgment counsel-fee allowance of $14,-525.00. The absence of a specific recitation that the amendment was in fact intended to cover the award is inconsequential. Even if the law required an explicit inclusion of the attorney’s fee award to make the amendment efficacious, terms that fulfill the intent of the parties can be constructively supplied.⁶

The issue here is not the specific legal anatomy of what the trial court awarded by its November 6, 1984 postjudgment order, but rather whether the added liability imposed by that award — be it characterized in law as “recovery”, “costs” or something else — was intended to be included in the amended undertaking. There is no need for us to describe in this case the counsel-fee award either as an item of recovery or as costs. Regardless of its nature, the sureties’ amendment patently undertook to cover the full amount of the additional liability adjudged below on November 6.

The sureties’ intent is manifested by the unequivocal words of the amendment — to cover “any judgment”. That the sureties intended to “stand good” for the entire adjudicated obligation also becomes apparent when the appellant’s total liability is viewed in conjunction with the timing as well as the terms of the amendment. The sureties’ undertaking on their original bond clearly came to be extended to protect from execution during the pendency of the appeal the entire obligation — both the judgment itself and the postjudgment award.

Like any other contract, a bond given to stay execution must be construed to further the obligor’s intent.⁷ The amendment’s enforceability is supported by the undeniable fact that its purpose has been accomplished.⁸ Execution was not sought upon the order assessing counsel fees. The appellant received full benefit of the amended bond, and the appellees should not now be deprived of the bargain due them as obligees of that undertaking.⁹

The amended bond is not facially void; it cannot be treated as a nullity.¹⁰ The want of a penalty clause in the amendment is not fatal to its validity. A bond will not fail for want of a penal sum if the surety’s obligation is reasonably ascertainable.¹¹ In short, the amendment is effective to modify the bond by increasing the sureties’ obligation to include the post-judgment counsel-fee award. Because the bond, as amended, did not recite the penal sum of the sureties’ undertaking, the obli-gors’ liability became coextensive with that of the principal (judgment-debtor).¹²

Appellees are granted summary judgment against the sureties on supersedeas bond — treated as a common-law undertaking — for the liability whose limit is coextensive with the sum total of all four items comprised within the adjudicated obligation: 1) the principal amount of the judgment, 2) interest, 3) court costs, and 4) attorney’s fees.

DOOLIN, C.J., and LAVENDER and KAUGER, JJ., and HUNTER, S.J., concur. ALMA WILSON and SUMMERS, JJ., concur in part and dissent in part. HARGRAVE, V.C.J., and HODGES, J., dissent. HUNTER, S.J., sat herein by designation of the Chief Justice in lieu of SIMMS, J., who was disqualified.

1 . 12 O.S.Supp.1986 § 971 and Rule 31, Rules of the Supreme Court, 12 O.S.1981, Ch. 15, App. 1. The pertinent terms of 12 O.S.Supp.1986 § 971 provide:

“[I]n the event that the judgment of the court to which such appeal is taken is against the appellant, judgment shall, at the same time it is entered against the appellant, be entered against the sureties on his said undertaking to stay execution_” [Emphasis added.]

The pertinent terms of Rule 31, Rules of the Supreme Court, 12 O.S.1981, Ch. 15, App. 1, provide:

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(2) If the original supersedeas bond or certified copy is not included in the record, or if so included and not called to the Court's attention in the briefs, the appellee ... may file with the Clerk a motion for judgment on the supersedeas bond, and this Court, in all proper cases, where the appellee is entitled thereto, will enter an order rendering judgment on said bond. [Emphasis added.]

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2 . Venator v. Edwards, 126 Okl. 296, 259 P. 596 [1927] (syllabus).

3 . Ryndak v. Seawell, 23 Okl. 759, 102 P. 125 [1909] (syllabus).

4 . Philbrick v. Tadder, 196 Okl. 218, 164 P.2d 226, 227 [1945] (syllabus); Haffner v. Commerce Trust Co., 184 Okl. 212, 86 P.2d 331, 333 [1939]; Rippey v. Cone, 171 Okl. 324, 43 P.2d 76 [1935] (syllabus); Peck v. Curlee Clothing Co., 63 Okl. 61, 162 P. 735 [1917] (syllabus).

5 . Federal Discount Co. v. Clowdus, 50 Okl. 154, 150 P. 1104 [1915] (syllabus).

6 . Federal Discount Co. v. Clowdus, supra note 5 at 1105.

7 . Ryndak v. Seawell, supra note 3 at 126.

8 . Ryndak v. Seawell, supra note 3 at 127.

9 . Philbrick v. Tadder, supra note 4 at 228; Rippey v. Cone, supra note 4 at 78.

10 . Venator v. Edwards, supra note 2 at 259 P. 598.

11 . See Ryndak v. Seawell, supra note 3 at 128.

12 . See Allen v. Hartford Accident & Indemnity Co., 190 Okl. 313, 123 P.2d 252, 253 [1942].