Charman v. McLane

1 Or. 339 | Or. | 1861

Boise, J.

Two points are raised in the assignment of errors:

First. It is said it was error to enter judgment on a bond thus executed by a firm.

Second. That the Circuit Court has no authority, when, on an appeal, judgment is affirmed, to render judgment against sureties, as well as principal, in an appeal bond.

As to the first point: The bond seems, on its face, to be the bond of a firm, known as Charman & "Warner'; and there can be no question but a bond of this description is not within the scope of the partnership business; and, to render both partners liable, it would be necessary that both should assent to and recognise its validity. If one of the partners signed the partnership name to it, without the concurrence of the other, he alone would be liable. There is nothing in the record to show which of the partners signed the bond, or whether both assented to it. The one who signed it would be liable, and both would be if both assented.

The court below must have inquired into these facts, in order to have rendered an intelligent judgment; and we must presume that the court below found that both of the plaintiffs assented to and recognised this bond. .

As to the other point, I think it is clearly settled by the statute. On page 18, of the Session Laws of 1860, it is provided that, in eases of appeal from the county to the circuit courts, the filing in the Circuit Court of the transcript and papers, in a case appealed from the County Court, “the Circuit' Court shall become possessed of the cause, and shall proceed in the same manner, as near as may be, as in regard to causes brought by appeal from justices of the peace.”

The giving judgment is a part of the proceedings of the Circuit Court, on an appeal from a justice of the peace; and, in cases of appeal from justices of the peace, the manner of giving judgment (in the Circuit Court) is clearly defined. In the 195th section of the statute, regulating courts of justices of the peace, page 323, it is provided, “ In all eases of appeal to the Circuit Court, if on the trial anew in such court, the judgment be against the appellant, in whole or in part, such judgment shall be rendered against him and his sureties in the undertaking for the appeal.”

It is clear that the legislature intended the Circuit Court should proceed in this respect in the same manner as on appeals from justices of the peace.

If this be so, then the judgment against the sureties was right.

Judgment affirmed.