40 Neb. 447 | Neb. | 1894
On the 25th day of November, 1889, Joseph Storey recovered a judgment in the district court of Adams county, Nebraska, against John H. Dunterman. On the 9th day
“Whereas, on the-day of-, 1890, John Dunterman has filed in the supreme court his transcript and petition in error to obtain a reversal of a judgment rendered in the district court of Adams county on the 25th day of November, 1889, in favor of Joseph Slorey and against John H. Dunterman, for the sum of |621.36 and for costs of suit pending therein, wherein said Joseph Storey was plaintiff and John H. Dunterman was defendant:
“Now, therefore, we, John H. Dunterman, as principal, and Jacob Bernhart, as surety, do hereby undertake to said Joseph Storey, in the sum of $1,250, that said John H. Dunterman will pay the condemnation money and costs in case said judgment shall be affirmed in whole or in part.”
The bond was approved by the clerk of the district court on the day of its execution. This suit was brought by Storey against Dunterman and Bernhart on said bond. Storey in his petition alleged the recovery of the judgment against Dunterman; the execution, delivery, and approval ■of the aforesaid supersedeas bond by Dunterman and Bernhart; its filing with and approval by the clerk of the district court of Adams county. The petition further alleged that more than a year had elapsed since the making of the last final order and judgment in the ease of Storey against Dunterman in the district court of Adams county; that no bill of exceptions had ever been settled in said case, and that no proceedings in error or appeal are now pending in the supreme court of Nebraska from the said judgment, whereby the same has been wholly affirmed, unreversed, and unmodified, and the conditions of said obligation have become absolute and payable; that Dunterman was wholly insolvent and had no property
1. Does Storey’s petition state a cause of action? It must be confessed that the petition is not a model by any means, but we think it states a cause of action.
2. The allegation in Bernhart’s answer that, as a matter of fact, no proceedings to review on error or appeal the judgment rendered in favor of Storey were ever instituted
3. That as the petition alleged that the Storey judgment had been affirmed and the supersedeas bond had been forfeited, and that these allegations were denied by the answer, that the court could not render a judgment in favor of Storey without evidence to support such allegations of the petition. If counsel for the plaintiff in error in his answer had stopped after denying that the Storey judgment had been affirmed, his contention would be correct; but he went further, and pleaded as a defense that no proceedings in error of any nature looking to a reversal of the Storey judgment were ever had or filed in this court. This allegation was not denied by Storey, and it then stood admitted
4. The bond which Bernhart signed provided that he would pay the condemnation money and costs in case said judgment should be affirmed in whole or in part. So, then, we have the question as to whether the failure of Dunterman to institute, or attempt to institute, in this court any proceeding for a reversal of the judgment for more than one year after its rendition amounted to an affirmance of it. We are cited by the counsel for the plaintiff in error to Drummond v. Hussen, 14 N. Y., 60, to sustain the contention of counsel that such failure on the part of Dunterman ■did not affirm the judgment. In that case the bond signed by the surely was in the following language: “Now we, the subscribers, hereby undertake that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the,” etc. This bond was said by Selden, J., who ■delivered the opinion of the court, to be in the precise language of section 335 of the New York Code. It appears from the opinion that the appeal was filed and docketed in the court of appeals and was dismissed for want of prosecution. In the suit on the bond the dismissal of the appeal from the appellate court was made the sole ground of defense, and the court of appeals sustained the defense made, holding that “a dismissal of the appeal for want of prosecution is clearly not an affirmance of the judgment. This •court has decided nothing whatever in respect to the validity of the judgment.” This case from New York is in
5. By the execution and filing of the supersedeas bond Bernhart took one step in the proceedings to have reviewed on error the Storey judgment. He then abandoned all further attempts to reverse the judgment, thus leaving it in full force. The judgment, then, is in the same plight that it would have been had Bernhart filed his transcript of the récord of said judgment and bill of exceptions in this court and then liad neglected to have a summons in error issued within one year from the date of the judgment and this court had dismissed such error proceeding. We have already seen that had this court dismissed the error proceedings, by reason of the failure of Bernhart to comply with some requirement necessary to a review of the judgment on error, the dismissal of the proceedings would in effect be an affirmance of the judgment rendered. Is not the effect on the judgment just the same, whether proceedings in error be instituted and then dismissed without an examination of the case upon its merits, or whether the judgment debtor, after taking one or more steps looking towards reviewing the judgment on error, abandons the proceedings? A judgment debtor, by filing a supersedeas bond with the clerk of the district court and a petition in error in this court, stays the execution of the judgment at least for one year from the date of its rendition, as the filing in this court of the petition in error does not invest this court with jurisdiction over the person of the judgment creditor. For this purpose it is necessary that a summons in error shall be issued within a year from the date of its rendition,
Affirmed.