| Iowa | Oct 20, 1862
Appellants in this court discuss but one-question — maintaining that the instrument sued on is not, upon its face, an ordinary statutory appeal-bond, and that,
The statute in force at the time this bond was given, provided that it should be “ conditioned that if the judgment appealed from, or any part thereof, is affirmed, or judgment rendered against him in the Supreme Court, the appellant will pay the judgment and all the damages and costs which may be awarded against him, and otherwise obey the orders of the court.” (Code; § 1983.) A bond conditioned substantially in compliance with this requirement would unquestionably be good, and could be recovered upon as imposing the statutory obligation. And while it is true, as claimed by appellants, that in construing a paper we are to look to the paper itself, and cannot look to surrounding circumstances, “to make that uncertain which is plain,” it is equally true that what a contract means is a question of law, — that in giving it a construction the first point is to ascertain what the parties meant. In arriving at this meaning, a few leading rules have been established, which may be stated. The subject matter of the contract is to be fully considered. Equally important is it to know the situation of the parties, and of the property, as also the purpose of the parties in making the contract, “ for the purpose and intention will be carried into effect, so far as the rules of language and law will permit.” In determining the meaning of any or all its parts, the whole contract is to be considered. Said Lord ELLENBOROUGH in Barlon v. Fitzgerald, 15 East., 541: “It is a true rule of construction that the sense and meaning of the parties, in any particular' part of an instrument, may be collected, ex antecedentíbus et conseguentíbus ; every part of it may be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done.” But finally, it must be remembered that the rule “ is not that the court will always construe a contract to mean that which the
Applying these familiar rules, and looking alone at the terms of this bond, can there be any fair room for doubt as to what the parties intended ? It seems to us not. Plaintiffs say that the obligors by their bond undertook to pay the judgment referred to without any contingency. This is not our construction, but that they undertook to pay it if it was affirmed in the Supreme Court. In other words, if the judgment recited had been reversed and set aside in the appellate court, defendants would not be compelled to pay it, because of the language used in the bond.
We must look at the language used, and its connection. There is a palpable and gross inconsistency in saying that defendants are unconditionally and beyond all contingency liable to pay a judgment which they were in the very act of removing to the Supreme Court for review, because of alleged errors therein contained. Then the whole language and connection shows that they were providing for a future judgment or ultimate liability. The words employed are, “ shall pay the judgment rendered against said defendants in the above case, and all damages and costs which may be awarded against them, and otherwise obey the orders of the court, on an appeal taken from said judgment to the Supreme Court of Iowa, this day.” Plaintiffs’ construction makes defendants liable for the judgment at once, what
As assisting this view a few additional facts may be mentioned. The bond was filed with the clerk, and approved by him. As construed by appellant, it had no place in his office, nor was it any part of his duty to approve it. Not only so, but this construction makes it an anomaly. There is no statute anywhere providing for or recognizing any such bond. If not an appeal bond, it can only have force and effect as a common law undertaking. And when,-from the language used, a legitimate statutory object and purpose can be seen to have been intended, it will not be presumed that the parties voluntarily made a bond only good at common law. Then, an appeal was taken on the day of the date of the bond, from the very judgment named, and the transaction is entirely inexplicable except upon the hypothesis that this was an appeal-bond, given to stay the execution of the judgment. It is not a case of mistake- or oversight, notwithstanding it is so spoken of in the answer. But a case where the parties were about to take an appeal, and desired to file a supercedeas bond — where they have filed an obligation which is of that character, essentially and in substance, when considered in the light of its subject matter, the situation and purpose of the parties, and in its whole scope and meaning, notwithstanding it may fail to' use the very words, or all the words, of the statute.
The judgment is Affirmed.