are held liable for the full amount of whatever judgment the supreme court may render, without regard to the amount of the judgment appealed from.3 Until an appeal has been determined, the liability of a surety on the appeal bond is held to be purely contingent, and in case of his death does not constitute a claim against his estate. Surety's liability on an appeal bond held to become fixed only when the creditor has taken every reasonable step to exact payment from the principal therein and no property can be found. Sureties on an appeal bond cannot, it is held, question the validity of a judgment affirmed against their principal on the ground that the appeal should have been completed by recognizance instead of bond. Neither can they go behind the judgment to set up as matter of defense that which should have been pleaded in the original action, as that the inferior court was improperly constituted, or that the judgment therein was improperly rendered, or that it was procured by fraud. And on the same principle, where judgment had been rendered against a surety on an appeal bond, it was held that the administrator could * Cooper v. Rhodes, 30 La. Ann. 533. To same effect, also, see Walker v. Williams, 88 N. C. 7. See, on this subject, Cotulla v. Goggan & Bros., 77 Tex. 32. 4 Sauer v. Griffin, 67 Mo. 654. 5 Cooper v. Rhodes, 30 La. Ann. 533; Pinard v. George, 30 La. Ann. 384. To the effect, however, that principal's real estate need not first be exhausted before proceeding against surety on appeal bond, see Railsbuck v. Greve, 58 Ind. 72; Staley v. Howard, 7 Mo. App. 377. Though it is held the surety on the appeal bond has the right to show in his defense that a legal sale of the principal's property would have satisfied the judgment. Lafayette Fire Ins. Co. v. Remmers, 30 La. Ann. 1347. In Indiana it seems to be necessary in order to recover on an appeal bond, to prove that, at the time the judgment was affirmed, the judgment creditor owned no property subject to execution: McFadden v. Lovitt, 13 Ind. App. 281, 41 N. E. 6 Granger v. Parker, 142 Mass. 186. In Mueller v. Kelly, 8 Colo. App. 527, 47 Pac. Rep. 72, defendants appealed from a judgment against them which was claimed to be void because rendered in a district other than the district in which the suit was pending, and allowed their appeal to be dismissed. Held, that the sureties on the appeal bond could not set up the invalidity of the judg ment as a defense. "To effect an appeal," said the court, "he must give an appeal bond, and to protect his sureties from liability upon the bond he must prosecute his appeal with effect, or pay the judgment appealed from. The validity of the bond does not depend upon the validity of the judgment." 87. 7 McCormick v. Hubbell, 4 Mont. 8 Krall v. Libbey, 53 Wis. 292. not set up as a defense the fact that the surety was insane when he assumed the liability sought to be enforced. It has been held that default in a supersedeas bond begins upon failure by the obligors to comply with demand for payment made after affirmance of the judgment or decree appealed from,10 in whole or in part.11 The filing of a petition for rehearing after affirmance does not postpone the liability of the obligors on the appeal bond.12 Dismissal of the appeal, for any cause, makes the sureties immediately liable.13 Rollins v. Love, 97 N. C. 210. 10 Tarr v. Rosenstein (Mass.), 53 Fed. Rep. 112, 3 C. C. A. 466, 5 U. S. App. 197, affirming 51 Fed. Rep. 368, Putnam, C. J., whose opinion was adopted by C. C. A. That no demand is necessary before bringing suit upon an appeal bond: Bolles v. Bird, 12 Colo. App. 78, 54 Pac. Rep. 403. That it is not necessary to file a certified copy of the order of affirmance in the trial court before suing on the appeal bond, see Perkins v. Klein, 62 Ill. App. 585. In Providence Washington Ins. Co. v. The Sydney and The William Worden, 47 Fed. Rep. 260 (C. C., N. Y.), it was held that a supersedeas bond in admiralty is not in default until the adjudication by the supreme court vacating the appeal becomes, by the filing of the mandate, the decree of the circuit court. 11 In Harding v. Kuessner, 172 Ill. 125, debt on an appeal bond, it was held that the failure of the principal to pay $1,072.22, for which amount the judgment against him of $1,462.50 had been affirmed, constituted a breach of the appeal bond and that interest from date of the judgment should be allowed. The bond in that case recited the judgment for $1,462.50 and was conditioned that the principal should "pay the amount of the judgment, costs, interests and damages rendered or to be rendered against it in case the said judgment shall be affirmed." In Rehm v. Halverson, 197 Ill. 378, 64 N. E. Rep. 388, affirming 94 Ill. App. 627, in a forcible attainer suit a justice of the peace rendered judgment against defendant for the whole of the premises in question. Upon defendant's appeal, the circuit court entered judgment against him for only part of the premises. Held, that the defendant's appeal was not prosecuted with effect and that the sureties on the appeal bond were liable. 12 In Perkins v. Klein, 62 Ill. App. 585, supra, an appeal bond, on appeal from the appellate to the su preme court, was conditioned that the principal would surrender himself to the sheriff or pay $7,500 "within ten days after such affirmance. The judgment was affirmed Oct. 29, 1894. A petition for rehearing was filed and stay order granted thereon and on March 21, 1895, the petition for rehearing was denied, whereupon the principal surrendered himself to the sheriff. Held, that his failure to surrender himself to the sheriff within 10 days after Oct. 29, 1894, constituted a breach of the bond. Affirmed in Klein v. Boyd, 169 Ill. 325, 48 N. E. Rep. 475. 13 In Smith v. Prendergast (D. C., S. D., N. Y.), 82 Fed. Rep. 504, a libellant having obtained judgment for wages in the U. S. D. C., defend § 532. Surety not released by further appeal-Petition for rehearing, or want of penalty-Statutory "undertaking."— An appeal bond being security only it is no defense in a suit upon it that other steps are being taken to collect the judgment appealed from.14 Or that a petition for rehearing is pending.15 Or that a like bond was filed upon a prior appeal from the same judgment. In an Ohio case, plaintiff recovered a judgment in the common pleas against a railroad company, which was affirmed by the circuit court whose judgment was afterwards affirmed by the supreme court, the railroad being the plaintiff in error in each instance. In a suit against the surety on the supersedeas bond given by the railroad on filing its petition in error in the supreme court, the giving of a like bond with a different surety by the railroad on filing its petition in error in the circuit court was held to be no defense.16 An appeal bond stating no sum as penalty but conditioned for the payment of the judgment appealed from in the event of its affirmance is sufficient to bind the sureties.17 In the District of Columbia a statutory "undertaking" has been substituted for an appeal bond in appeals from justices of the peace. It is not under seal, has no penalty and judgment may be entered upon it as soon as judgment is entered against the principal.18 § 533. Sufficiency of sureties on appeal bond-Justification -When guilty of contempt.-The discretion reposed in a judge as to the security to be taken on appeal extends not only to the amount of the security but to the number of sureties to be required; and when a bond had been taken with one surety, where the law provided that two shall be required, the su ant, in 1882, appealed and gave a bond to stay execution conditioned to be void if appellant should "prosecute said appeal with effect and pay all damages and costs which shall be awarded against him as such appellant if he should fail to make his plea good." In 1896 the appeal was dismissed by the C. C., and the cause "remitted to the district court for final proceedings." Held, that the district court had jurisdiction to enter up summary judgment against the surety on the bond for the amount due on the judgment not exceeding the penalty of the bond. 14 Such as issuing execution upon the judgment appealed from: Rockwell v. District Court, 17 Colo. 118, 29 Pac. Rep. 454. 15 Perkins v. Klein, 62 Ill. App. 585. 16 Hayes v. Wheeler, 61 Ohio St. 55, 55 N. E. Rep. 172. 17 Wile v. Koch, 54 Ohio St. 608, 41 N. E. Rep. 236. 18 Quaere as to its constitutionality in Tenney v. Taylor, 1 App. Cas. (D. C.) 223. For an example see Code D. C., 1903, § 454. preme court of the United States held that they would not require a new bond to be furnished for that reason only, if the original bond was not thereby invalidated.19 But if, after the security has been accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond, have changed, so that security which at the time it was taken was good and sufficient does not continue to be so, the court, on proper application, may so adjudge and order as justice may require.20 It is held that the failure of sureties on an undertaking on appeal to justify, after an exception to their pecuniary responsibility has been taken, does not render the appeal ineffectual.21 Where a surety to an appeal bond becomes such with knowledge that he is insolvent and with no expectation of paying the liability assumed, it is held that he may be punished for contempt of court.22 A surety for costs in a justice court, in the event his principal be cast in the suit, may become surety on appeal from the judgment.23 A surety's failure to justify does not relieve him from liability.24 A Califor 19 Mexican Construction Company v. Reusens, 118 U. S. 49. Where the surety was an incorporated surety company, held that an appeal bond signed in the corporate name, sealed and attested by the assistant secretary and the second vice president, was prima facie sufficient: Gutzeil v. Pennie, 95 Calif. 598, 30 Pac. Rep. 836. 20 Jerome v. McCarter, 21 Wall. 17. 21 Wittram v. Crommelin, 72 Cal. 89; Hill v. Finnigan, 54 Cal. 311; Schacht v. Odell, 52 Cal. 449. Failure of sureties to justify does not warrant a dismissal of appeal unless appellant fails to file a new appeal bond: Tompkins v. Montgomery, 116 Calif. 120, 47 Pac. Rep. 1006. In Williams v. Borgwardt, 115 Calif. 617, 47 Pac. Rep. 594, it was held that although the supreme court has inherent power to permit the appellant to file a new appeal bond in that court in lieu of the appeal bond filed in the court below, it will refuse to exercise that power and will dismiss the appeal where the appellant shows no good excuse for failing to have his sureties justify in the court below. Citing Hill v. Finnigan, 54 Calif. 493. 22 Simon v. Aldine Publishing Co., 14 Daly (N. Y. Com. Pleas) 279. 28 Sampson v. Solinsky, 75 Tex. 663, adhering to Trammel v. Trammel, 15 Tex. 291. 24 In Moffat v. Greenwalt, 90 Calif. 368, 27 Pac. Rep. 296, the sureties on the appeal bond on appeal from a justice of the peace failed to justify whereupon no further bond was. filed and the appeal was abandoned. It was held that they were liable nevertheless. The court said (p. 370): "At the common law, when special bail were excepted to, they were considered as no bail, unless they justified; and if they did not justify, the court would, upon their application, order an exonereter to be entered upon the bail piece; but until this was done they were held liable (1 Tidd's Practice, 258). In nia statute provides that sureties on a stay bond may justify before a judge of the superior court or the county clerk. Held, that there is no appeal from the one to the other. The obligee having made his election must abide by the result.25 § 534. Judgment against sureties on appeal bonds upon motion-Pleading-Evidence.-A judgment taken against sureties upon an undertaking on appeal, upon motion, and without notice, is held to be valid and will support an execution sale thereunder.26 And it is held that a valid judgment may be rendered against a surety on a supersedeas bond without notice.27 And the surety cannot enjoin the enforcement of such judgment.28 Upon affirmance of an appealed judgment, the liability of the sureties upon an undertaking to stay execution pending appeal becomes conclusive, and judgment may Bramwell v. Farmer, 1 Taunt. 427, 25 Boyer v. Superior Court, 110 Calif. 401, 42 Pac. Rep. 892. Com pare Fox v. Hale and Norcross Silver Mining Co., 97 Calif. 353, 32 Pac. Rep. 446, in which case after an appeal bond had been accepted by the clerk and after the surety had justified before the clerk (p. 354), the appeal bond was, by the supreme court, held to be so manifestly insufficient, though it was in proper form and amount, as not to operate as a stay of execution. Note 9, § 14. 26 Under the California Code: Mowry v. Heney, 86 Cal. 471; Meredith v. Assn. of Baltimore, 60 Cal. 617. But see Hansen v. Martin, 63 Cal. 282. In Wooldridge v. Griffith, 59 Tex. 290, it is held that a judgment against sureties on an appeal bond without citation to or service on the surety is void. 27 Phelan v. Johnson, 80 Iowa 727. To the effect, also, that if on an appeal in chancery a supersedeas bond is given and the decree is affirmed, summary judgment will be rendered against the sureties, see Crawford v. Kirksey, 55 Ala. 282. But contra if the decree be reversed. Crawford v. Kirksey, 55 Ala. 282. 28 Phelan v. Johnson, 80 Iowa 727. |