Galloway v. Yates
10 Minn. 75
Minn.
1865
Check Treatment

By the Court —

Berry, J.

— We deem it unnecessary to determine the questions of practice raised by the counsel for the appellants. Granting that the answer was sham or frivolous, and that it was entirely proper to disregard it, we think the respondent was not entitled to judgment upon his complaint, for reasons which go to the merits of the case. We infer from the complaint that no judgment had in fact been entered prior to the former appeal, both because the complaint in this action omits to set out the entry of any such judgment, and because none was reversed or set aside by the Supreme Court. We do not see how it could be contended that on an appeal from an order denying a motion to set aside a verdict, &e., no judgment having in fact been entered, an undertaking by which the parties executing the same, bind themselves in case a judgment which has no existence “be affirmed or any part thereof be affirmed,” that they will “pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed,” could possess any force or vitality whatever. Nor granting that judgment had actually been entered, do we perceive how an action could be maintained upon such an undertaking, without some further allegation and proof of the existence of a judgment, than the loose recital or rather allusion to its rendition contained in the undertaking upon which the present action is brought. It is not claimed that there has been any breach of the agreements mentioned in the undertaking, except in respect of the non-payment of the judgment. Was there any breach in this respect ? By the terms of the undertaking, the appellants bound themselves, “if said judgment be affirmed or any part thereof be affirmed,” to pay “the amount directed to be paid by the judgment or the part of such amount as to which the judgment shall be affirmed.” Now, even assuming that a judgment had been entered before the appeal was taken, has the contingency upon the occurring of which they bound themselves to pay arrived ? The order of the Appel*78late Court was (8 Minn., 188,) “that the said order appealed from be reversed, unless the plaintiff (that is, the respondent here,) should remit from the verdict of the jury the statutory damages assessed against said Litchfield and V. P. Lewis, and consent to take judgment against F. D. Lewis alone, in which event said order appealed from is affirmed,” and the District Court “was instructed to permit the plaintiff to enter judgment therein upon the verdict in accordance with said order,’) which was done. Now all that was done by the Supreme Court, was to affirm or rather modify an order, not a judgment in whole or in part. This was not by the terms of the undertaking, the contingency upon the happening of which the appellants agreed to pay. There has been no breach upon their part.

The order of the Court below for judgment on the pleadings, and notwithstanding the answer, is reversed.