201 N.W. 1005 | S.D. | 1925
This action was brought by Davison county and its board of county commissioners against the Watertown Tile & Construction Company, a contractor in a certain drainage proceeding, and its surety, the Western Surety Company. The action is upon the contractor’s bond. The defendant contractor answered the complaint, and at the time of preparing the record on this appeal the issues as between the plaintiffs and the contractor had not been tried. The defendant surety demurred to the complaint. The demurrer was overruled, and the surety was given 20 days' within which to answer. Before the expiration of such period, the surety appealed fromi the order overruling its demurrer. This court, in 47 S. D. 101, 196 N. W. 96, sustained the trial court on
One of the contentions of appellant is that under Trial Courts Rule 7 (40 S. D. prelim, p. 19), it was not in default. The relevant portion of the rule is:
“When a party appeals to the Supreme Court from an order overruling a demurrer to any pleading before the time for answering or replying thereto has expired and such order is affirmed, such party may have fifteen days after the filing of the remittitur in which to answer or reply to such pleading.”
Respondents contend that said rule, if interpreted so as to give appellant the' absolute right to answer under the circumstances herein disclosed, is in violation of section 3159, Rev. Code 1919, which reads as follows:
“When the appeal is from an order the execution or performance thereof shall not be delayed, except upon compliance, as the court or presiding judge thereof shall direct, and when so required, an undertaking shall be executed on the part of the appellant, by at least two sureties, in such sums and to such effect as the court or presiding judge thereof shall direct; such effect shall be directed in accordance with the nature of the order appealed from, corresponding to the foregoing provisions in respect to appeals from judgments, where applicable, and such provision shall be made in all cases as shall properly protect the respondent, and no appea from an intermediate order before judgment shall stay proceedings, unless the court or presiding judge thereof shall, in his discretion, so specially order.”
Appellant perfected its former appeal by serving and filing an undertaking for costs only and did not serve or file the undertaking provided for in said section 3159. Nor did the trial court make an order staying proceedings pending that appeal. That section means what it says. Supervisors v. Walbridge, 38 Wis. 179; Whereatt v. Ellis, 68 Wis. 61, 30 N. W. 520, 31 N. W. 762; State ex rel Taylor v. Town Board, 69 Wis. 264, 34 N. W. 123;
Manifestly, this alternative power granted to this court in a specific instance is not sufficient to justify the promulgation of a sweeping rule giving to appellants in all cases, upon an appeal from an order overruling a demurrer to the complaint, the right to answer after the determination of the appeal. Our attention has not been called to any other regulation that the Legislature has authorized this court tO' make, and we do not find any other statutory authority upon this subject. Therefore in order that rule 7 may be effective, it can only apply to cases where compliance is had with said sections 3159 or 3163. The reason for the enactment of the above-quoted portion of rule 7 was to remove the then existing uncertainty as to the period of time an unsuccessful appellant might have within which to answer. For instance, if*an order of the trial court gave the appellant 20 days to answer, and if he perfected his appeal on the nineteenth day, would he, if unsuccessful on appeal, only have one day to answer after the filing of the remittitur, while if he had perfected his appeal on the tenth day would he have had 10 days? As above suggested, it was for the purpose of making a uniform rule on this subject that the rule was adopted, and no thought was given to the question whether the appellant had insured 'his rights by proceeding under said section 3159. There was no intention on the part of this court to act in contravention of that section.
Another question presented by this appeal is: Did the trial court have power to enter judgment by default in accordance with the provisions of subdivision 1 of section 2485, Rev. Code 1919, and without the assessment of damages in accordance with the provisions of subdivision 2 of said section? We think not. The complaint <in this action is based upon the contractor’s bond, brit upon the failure of the surety to answer the complaint the plaintiffs were not entitled, without-proof of the amount of damages, to a judgment for the sum demanded in the summons. The condition /of the bond was not that the surety should be liable for a specific sum/ as liquidated damages, but was as follows:
“Now, therefore, if the said-first parties shall well and faithfully perform- their part of the contract and maintain the same for five years, according to sections 2 and 20 of the specifications attached to said contract, according to said plans and specifications, then this obligation to be void, otherwise to remain in full force and virtue.”
Plaintiffs were only entitled to judgment (up to the amount of the bond) for the actual amount of damages suffered by the breach of the contract. Manifestly, it would require proof to determine that amount. Tuttle v. Smith, 14 How. Pr. (N. Y.) 395; Naderhoff v. Benz, 25 N. D. 165, 141 N. W. 501, 508-510, 47 L. R. A. (N. S.) 853.
Another point made by the appellant is that^ no judgment could be entered against it until judgment had been entered against the contractor. In support thereof appellant refers us to section 2649, Rev. Code 1919, and cites Schwitz v. Thomas, 38 S. D. 180, 160 N. W. 734, and Palmer v. Baker, 45 S. D. 196, 186 N. W. 951. That section does not so hold, no do- the cases cited so hold. That section relates to the contents of the judgment in certain cases and to the procedure upon execution.. It in no manner relates to the question whether trial may be had and judgment entered against one defendant in advance of tidal and
Inasmuch as the trial court erred in entering judgment without taking proof as to the amount of the damages to which plaintiffs were entitled, the order appealed from must be reversed, with directions to vacate the judgment.
Inasmuch as appellant was and is in default and has never sought to be relieved from the default, it is not our province to take cognizance in the first instance of the question whether appellant should 'be relieved from such default. No costs will be taxed in this court.