19 Colo. 315 | Colo. | 1893
delivered the opinion of the court.
The principal question presented for our determination is whether appellants, by virtue of the undertaking executed by them, are liable for the payment of the monthly installments that accrued after the affirmance of the order in the supreme court. We are unaided in our investigation of this question by any adjudicated case involving the same or a similar state of facts. The appeal was had under the act of 1885, allowing appeals from interlocutory orders, and the decision of the question depends upon the construction to be given to that act. Section 23 of the act provides :
“ Sec. 23. An appeal shall not stay proceedings on the judgment or order, or any part thereof, unless the appellant shall cause to be executed, before the clerk of the court which rendered the judgment or order, by oiie or more sufficient sureties, to be approved by such clerk, an undertaking to the effect that they are bound, in double the amount named in the judgment or order, that the appellant shall pay to the appellee all costs and damages that shall be adjudged to the appellee on the appeal, and also that the appel*319 lant will satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, and all rents or damages to property during the pendency of the appeal, out of the possession of which the appellee is kept by reason of the appeal.” * * *
If by force of the clause in the condition of the undertaking that “ appellant will satisfy and perform the judgment and order appealed from ” in case of an affirmance, the sureties are to be held to have undertaken that the principal should perform a continuing order, as contended by counsel for appellee, then we must conclude that the legislature intended to impose a liability upon sureties on such appeals much more extended than had theretofore existed in any other class of appeals, and to require them to do more than indemnify the appellee for such damages as they may have occasioned by suspending the enforcement of her remedy pending the appeal.
As generally accepted, the object of an appeal bond is to preserve the rights of appellee pending the appeal, that is, to protect him against any loss he may suffer by reason of the suspension of his remedy and to assure the performance of the judgment superseded thereby in case of affirmance. When, by reason of an affirmance of the judgment or order appealed from, the supersedeas obtained by virtue of the appeal bond expires and no longer suspends the appellee’s remedy, the liability of the sureties attaches and a right to an action against them accrues for the enforcement of the judgment suspended, and for such damages as they may have caused the appellee by postponing his remedy; and no good reason seems to exist why their liability should be extended beyond the time and after their interference has ceased to prejudice the appellee’s rights.
Under the application of this principle, the sureties herein should be held answerable for the performance of the order appealed from only so far as its performance was prevented
We do not think that a more extended liability than this was intended by the use of the language quoted, to wit: “ that the appellant would satisfy and perform the judgment or order appealed from.” It is fairly inferable that the legislature had in view only such orders as were usually made in the progress of the trial of a case, and not an exceptional order of this character that imposed a continuing duty and had in contemplation the performance of an order that required the immediate payment of money, which had been superseded by the undertaking provided for. Such intention is manifest by section 30 of the act, wherein it is provided :
“Sec. 30. Upon the affirmance of any judgment or order for the payment of money, the collection of which in whole or part has been superseded by undertaking as above contemplated., the court shall award to the appellee damages upon the amount superseded, and if satisfied by the record that the appeal was taken for delay only, must award such sum as damages, not exceeding fifteen per cent thereon, as shall effectually tend to prevent the taking of appeals for delay only.”
And section 31 provides for the restoration to appellant of any money or property taken from him by reason of such judgment or order, in case it is reversed.
We think therefore the construction to be given the condition of this undertaking is that the sureties obligated themselves that their principal should perform the order appealed from in so far as the supersedeas procured thereby stayed the enforcement of the same, and that their liability cannot be extended to the ¡performance of the order from and after the time the supersedeas was discharged and no longer prevented appellee from enforcing the order; and that the court below
We think the court below properly excluded evidence in relation to rents received by appellee for rooms in the house, the use of which was allowed to her in express terms by the order, and committed no error in disallowing the payments alleged to have been made as a credit upon the amount due under the order. The judgment will therefore be modified and the court below directed to enter judgment for the amount that had accrued under the terms of the order at the date the remittitur was issued by the supreme court upon affirmance of the order appealed from; and also for the sum of |29.60 costs awarded her on the appeal in the supreme court.
Reversed.
