59 Neb. 583 | Neb. | 1900
The plaintiff, A. Heater, being the assignee and owner of a judgment recovered by Heater & Keim against F. P. Bonnell for $344.15, instituted this action against the defendants in error as sureties on the official bond of James W. Pearce, who was clerk of the district court of Nuckolls county during a portion of the year 1890. The action was grounded on the alleged misconduct of Pearce in approving an undertaking given to stay the execution of said judgment. A trial of the cause resulted in a decision in favor of the defendants. The plaintiff brings the record here for review.
The principal defense to the action was that one of the sureties on the stay bond was insolvent, and was not a freeholder, and that, therefore, the right to enforce the judgment against Bonnell by execution was never suspended. With certain exceptions, not necessary to be here noticed, the statute gives a stay of execution on all judgments for the recovery of money only, in case the defendant “shall, within twenty days from the rendition of judgment, procure two or more sufficient freehold sureties to enter into a bond, acknowledging themselves security for the defendant for the payment of the judgment, interest and costs from the time of rendering the judgment until paid.” See Code of Civil Procedure, sec. 477c. Section 477d of the Code of Civil Procedure is as follows: “Officers approving stay bonds shall require
Reversed and remanded.