Atkins v. M'Cready

8 Iowa 214 | Iowa | 1859

"Weight, O. J.

Wilson has not appealed, and we therefore pass, without comment, so much of the argument and assignment of errors as relate to him. We direct attention alone to so much of the case as concerns the parties appealing.

The appellants object that the court erred in not trying the cause upon its merits, and in affirming the judgment upon plaintiff’s motion, without any cause being assigned therein. They did not appear before the district court, nor was any defense interposed to plaintiff’s demand, at any stage of the proceedings. Being in default, there was, in fact, nothing to try ; and there was no irregularity in affirming the judgment of the justice, upon the motion of plaintiff. If they had made an appearance, however, they should have demanded a trial upon the merits before they could object in this court, that this motion of plaintiff was improperly sustained. It is next objected, that there was error in rendering judgment against Martin P. M’Cready, for the reason that he was not served, and there was no judgment against him before the justice. It is true that he was not served, and that the justice had no jurisdiction over his person. Tie was one of the sureties upon the appeal bond of Wilson, however, and it was the plaintiff’s risrht to demand judgment against him as well as Wilson. Code, section 2341. In this view of his liability, his position, as one of the makers of the note, becomes quite unimportant. Neither is it material to inquire whether he was, or was not, served with notice of the action before the justice.

It is claimed, however, that there was no sufficient bond; that the one in the record describes another and different case ; and that there was error, therefore, in rendering judgment against the sureties. If we look alone to the language of the bond, this is true. We have seen, however, that the justice certifies that an appeal was taken in the case wherein Atkins was plaintiff, and Wilson and Martin P. M’Cready were defendants, but in which M’Cready was not served; and that John M’Cready was the surety upon the appeal bond. Such a bond was filed by the justice with the other papers in the district court, and appears to have been filed and approved by him as an appeal bond in the cause. This bond recites the name of the plaintiff — refers to the judgment rendered by the justice — that Wilson appeals therefrom ; but further recites that “ Martin P. M’Cready are defendants.” This reference to the defendants, is the only thing that gives any ground for the position that the bond was taken in another case. Everything else shows, beyond any fair doubt, that it belongs to, and was taken in this action. And this reference to the defendants by no means show's that it describes another suit. The notice was issued as well against M’Cready as Wilson, and the justice might, in the bond, refer to one or both as defendants, without departing entirely from the case upon his docket. Not only so, but the language used will fairly justify the conclusion that Wilson’s name w'as omitted by mistake, for the plural term (defendants), is employed, evidently showing that M’Cready was not the only defendant.

While, therefore, it may be admitted that the bond does not refer to the proceedings with critical accuracy, and while the record leaves it doubtful whether Martin P. was one of the principals, or a surety in the appeal bond, we cannot see that there is any such irregularity as could possibly prejudice either of the appellants. And, under such circumstances, it is our duty to affirm.

Judgment affirmed.