| Ark. | Jul 15, 1838
delivered the opinion of the court:
This was an action of debt instituted by the"'appellees against the appellant on four several recognizances in the Pulaski Circuit Court.".’,, The declaration contains four counts, and there isj a demurrer and issue put in to each count. The court below overruled the demurrer, and judgment by nil dicit was had against the defendant for the full amount of the several recognizances. To reverse that judgment, he appealed to this court, and assigned for error, first, that the plaintiff’s declaration is insufficient, and that the demurrer to each of the counts oughtto have been sustained; secondly, that judgment is given upon nil dicit for the whole amount of the recognizances, when, if the defendant washable at all, it could only be to the extent of the injury sustained, and a writ of enquiry should have been awarded to assess the damages.
Before the court proceed to determine these questions, it is necessary to state the facts of the case.
The appellees recovered four several judgments at law against Christian Brumhack, Martin Quest, and Alexander S. Walker, before a ^us^ce Peace. From these judgments, the defendants appealed to the Circuit Court, and the judgments were there affirmed. All of the judgments are for the value of one hundred dollars, exclusive of interest, except one, which is for the sum of ninety-eight dollars. From the judgments rendered by the Circuit Court in favor of the appellees, the appellants, with Chester Ashley as their surety, together with Edward Shurlds, Benjamin Clemens, and Kirkwood Dickey, wffio were not sued in this action, entered into four several recognizances to prosecute their appeals in the Superior Court of the Territory of Arkansas, conditioned as the Statute directs.
The declaration, in assigning the breaches of the recognizances, does not state that the judgments of the Circuit Court were affirmed or reversed. The first count sets forth, that the appeal from the judgment of the Circuit Court for the ninety-eight dollars was dismissed for want of jurisdiction iff the Superior Court with cost.
The act of the Legislature, approved July 3, 1807, Sec. 59, and organic law, Sec. 7, Digest page 335 and 38, regulating appeals from the Circuit to the Superior Court, give “appellate jurisdiction only in. all civil cases in which the amount in controversy shall be one hun. dred dollars or upwards.” The party appealing must show that the court has jurisdiction of the subject matter; and it is evident, as the sum is not one hundred dollars or upwards, the Superior Court could not rightfully take cognizance of the first appeal. What, then, is the legal effect of that recognizance? Is it binding on the sureties in the appeal? or is it null and void, as no such appeal could be lawfully allowed ? In the case of The Commonwealth vs. Messenger, 4 Mass. 462" date_filed="1808-09-15" court="Mass." case_name="Commonwealth v. Messenger">4 Mass. Rep. 462; Campbell vs. Howard, 5 Mass. 376" date_filed="1809-09-15" court="Mass." case_name="Campbell v. Howard">5 Mass. Rep. 376; and Weatherby vs. Johnson et al. the court expressly decided this point. The appeal is declared to be a mere nulllity, and the recognizance of the appellant n the court below to prosecute his appeal, held to be void, and that he appellees can sustain no injury by a failure to comply with its conditions. “The party obtaining the judgment, may,” says Chief Justice Parsons, “sue out execution upon it, or maintain an action of debt ‘upon it, for the judgment remains in full force, and forms a legal “ consideration.”
On this point the court have no difficulty in coming to a conclusion.
The second, third and fourth counts of the declaration allege that the rtppeal on the three remaining recognizances for one hundred dol- • jt-a ' ■ lars wore dismiss'd fo- win1; of prosecution, by the Superior Court, and jud cm *nt ent.'rad in each cas; for costs,
The Superior Court unqncstio mbly had jurisdiction of the appeals, for each is for one hundred dollars, and that sum is sufficient to give to the party a right of appeal. Thu appeals were then properly granted by the Circuit Court, and the only question for us to determiners the liability of the securities upon the recognizances. The enquiry, then, naturally arises, does the declaration contain a good cause of action, or are the breaches properly assig led? it must be admitted that, if the recognizances are good, the declaration must be sufficient; for it sets out the only cause of action the plaintiffs have, which is, that there was a judgment of the Superior Court dismissing each of the appeals, and which is declared to be in full force and effect.
This is an action of debt on four several recognizances, and to ascertain the responsibility of the sureties, we must see how far they are bound by their conditions.
The appellees have declared that the appeals were dismissed for want of prosecution. But is that one of the conditions or stipulations of the recognizances? Did they ever covenant, that the appeals should not be dismissed for want of prosecution, or that they would prosecute them with effect, or does the legal consequence flowing from their recognizances contain any such provision?
The recognizances are “that in case judgment shall be confirmed they will pay the debt, damages and costs.” Does the declaration negative the condition, or declare that the judgments on the appeals were affirmed or reversed by the Superior Court? There is no such allegation in any of the counts. It is merely stated that they were dismissed with costs for the want of prosecution, but upon whose motion this order was entered, docs not appear. Thai, however, does not in our estimation materially affect or change, the nature of the case. Wasthe dismissal of the Superior Court equivalent to an affirmation of the judgments? Certainly there is a striking difference between the two propositions. Had the judgments been affirmed, there would have been an end to the cases, and the condition of the recognizances would not have been complied with, and the liability of the present defendant fixed. The Superior Court in dismissing the appeals, placed the parties in the same condition asif no1 appeal had been prayed orallowed; and notwithstanding the order, the appellants might still have had a writ of error and supersede;)?, if the factr or the law had justified it, and brought up the case?, and in thisnrnncr have had the judgments below uffiimod or reversed in the Superior Court. Suppose the judgments of the Circuit Court had been reversed, would the sureties have still been liable upon the recognizances, in express contradiction of the Statute, which declares if the defendant appeals, and “ the judgment shall be reversed, the recognizances shall be null and void.” The Statute upon the subject does not leave the appellees without remedy or redress. If the party appealing shall fail or neglect to file with the Clerk a copy of the record and proceedings on or before the third day of the next suc ceeding term of the Superior Court, “it shall be lawful for the adverse party, producing a certificate from the Clerk of the court below, that an appeal has been entered, and a recognizance given, to move the court that the judgments stand affirmed.”
Here, then, the appellees had it their power, if they wished it, by producing the certificate of the Clerk, to have the judgments appealed from, affirmed.
They did not choose to do this, but the cases arc dismissed for the want of prosecution. If they have sustained any injury by delay, or in failing to sue out execution on their judgments, it was as much thc.r own fault as that of the appcli mts. For the neglect or unwilliugm ss of the one to have the causes tried and determined, could have been prevented by the vigilance and attention of the other. Both parties after the appeal is prayed and taken, have legal duties to perform, and if either omit his part, the other can take advantage of the negligence.
Between the writing or obligation sued on and the broaches assigned for the non-performance of its conditions, there seems to us a manifest and substantial variance, and one that is fatal to the declaration. It is a universal rule that the breaches must be proved as laid in the declaration. Thus, if the plaintiff declare upon a covenant to repair at all times, and the covenant contains the additional words, “at ffirthes!, within three months after notice,” the variance is fatal. So, if the plaintiff declare upon an absolute promise, and a conditional one be proved. Horsefall vs. Ester, 1st Mud. 89. Churchill vs. Wilkins, 1st T. R. 47. Sower vs. Winters, 7 Cowp. Rep. 20. Tht universal rule on the subject is,that the party declaring must prove the allegations-according to their legal effect. 3rd Stark. Ev. 564. if, in an action o¡ debt on recognizance of bail, the recognizance be alleged generally, and it appear from the record, that it bo a recognizance with a condition annexed, the variance will be fatal. Ward vs. Griffith, 1st Ld. Raym. 83. In an action against a,surety on a bail bond where there is a material difference between the bond and breaches assigned, the variance is fatal. 1 Roll. 551. In the case now under consideration, the variance between the recognizances set out in the declaration and the breadles assigned, is most manifest.
This does not arise, however, from any defect in the manner of the averments, but from the fact that under the judgment of the Superior Court, no other allegation could properly be made.
The legality of the recognizances springs from the authority of the act of the Legislature; and to give them a construction that would change or alter their terms or conditions in order to charge the sureties, would be both unreasonable and unjust. To make them liable, the condition of the recognizance must be violated. Until this appears, no cause of action accrues. The three last counts in the declaration do not show that the conditions have not been complied with. Dismissal and an affirmation of the appeal, are, in the opinion of the court, two separate and distinct things, and a wholly different undertaking. Tiie former by no just or legal inference can be made to include the latter. If this view of the subject be correct, then the plaintiffs have shown no cause of action, and the demurrer to the declaration ought to have been sustained.
The decision of this question necessarily disposes of the whole case, and it is deemed unnecessary to examine at length the second assignment of errors, it is obvious, however, that the judgment ouo-ht riot to have been rendered for the plaintiffs for the whole amount of tile recognizances upon nil dicit,
A writ of e * u‘ y should have been awarded to assess the damages. The opinion of ihe Circuit Court on this point was, therefore, evidently erroneous. The judgment of the court below must be reversed with costs, and the cause remanded, to be proceeded in agreeably to the opiaioa here delivered.