103 Ky. 525 | Ky. Ct. App. | 1898
delivered the opinion op the court.
By the supersedeas bond sued on in this case, the appellants, as sureties, of one Reynolds, covenant “to and with the appellee, Margaret Powers, that the appellant will pay to the appellee all costs and damages that shall be adjudged against the appellant on the appeal, and also that they will satisfy and perform the said judgment in case it shall be affirmed, and any judgment or order which the superior court of Kentucky may render, or order to be rendered by the inferior court, not exceeding in amount or volume the judgment aforesaid, and also pay all rents, hire or damages, etc."
On that appeal to the superior court, the judgment appealed from and thus superseded was on the 19th of December, 1894, affirmed, but pending a petition for a re-hearing, that court by operation of law became extinct, and all causes pending before it were directed to be transferred to the Court of Appeals and be determined by it. (Section 119, Constitution.)
The case was so tranferred and thereafter by this court the judgment below was reversed to the extent of $158.50, and a judgment was directed to be entered in the lower court for the original judgment less this credit. (Reynolds v. Powers, 17 Ky. Law Rep., 1059.)
It is now contended for the sureties on the supersedeas bond that as the judgment appealed from was not affirmed, nor was any judgment rendered by the superior court, or directed by it to be rendered In the inferior court, the conditions do not exist upon which, by the very terms of their covenant, they were to be liable. This seems to be true
But it seems to us, as the constitutional provision requiring the transfer and final determination of causes to the Court of Appeals which might be pending in the superior court upon its abolition, was in force when this supersedeas bond was executed, that it must be regarded as part of the contract of suretyship. The undertaking necessarily was to pay any judgment ordered to be rendered by the superior court, or if the cause be pending in that court and undetermined when it becomes extinct, then to pay whatever judgment is ordered to be rendered in the Court of Appeals.
This is not in violation of the rule that the surety is bound only by the terms of his bond because the law in existence at the time of the contract, and with reference to which the parties must be supposed to have contracted, is a part of the bond and composes its terms.
Judgment affirmed.