51 P. 45 | Or. | 1897
It is contended by counsel for petitioners that this court, having no original jurisdiction, is powerless to render the judgment complained of, and that the summary proceedings herein adopted constitute a denial of the right to a day in court and trial by jury. The statute provides, in effect, that if the appeal be abandoned, by a failure to file the transcript within the time prescribed by law, the judgment, so far as it is for the recovery of money, may be enforced against the sureties in the undertaking for a stay of proceedings, as if they were parties thereto (Hill’s Ann. Laws, § 541, subd. 4), and that, if the judgment be given against the appellant, it shall be enlarged against his sureties also, in like manner and with like effect, according to the nature and effect of their undertaking: Section 546, subd. 4, Ibid. The Revised Statutes of New Mexico (§ 5, page 290) contain the following provision: “In case of appeal in civil suits, if the judgment by the appellate court be against the appellant, it shall be rendered against him and his securities on the appeal bond.” The supreme court of the territory, in pursuance of the authority conferred by that statute, rendered judgment on appeal against an appellant and the sureties upon the appeal bond, and, a writ of error having been taken to the Supreme Court of the United States, it was held that no fundamental constitutional principle was involved, and
Section 540, Hill’s Ann. Laws, so far as it relates to the question under consideration, is as follows: "If the judgment or decree has been given in an action or suit upon a contract, notwithstanding an appeal and undertaking for the stay of proceedings, the respondent may proceed to enforce such judgment or decree, if, within ten days from the time the appeal is perfected, he file with the clerk an undertaking, with one or more sureties, to the effect that if the judgment or decree be reversed or modified the respondent will make such restitution as the appellate court may direct.” It will be observed that this section does not, in
It is contended that the undertaking in question was executed in consideration of the enforcement of the judgment; but, inasmuch as only one-half of the amount specified therein was collected, there was a failure of the consideration, the contract of the sureties was altered without their consent, and they are thereby discharged from all liability in consequence thereof. While the rule is well settled that the contract of suretyship is always strictly construed in favor of the surety, and cannot be extended by implication beyond the clear and absolute terms of undertaking ( 24 Am. & Eng. Enc. Law, 749 [1st Ed.] and notes), it is manifest that there was not, in the case at bar, an entire want of consideration, but the failure in that respect was pro tanto only, and caused by the act of the court, and, such being the case, the petitioners are liable to the extent of the money so collected: 2 Brandt on Suretyship, § 434. If this rule were otherwise, then the failure or neglect to collect the smallest fraction of the judgment would exonerate the sure
It is also contended that the payment of the money so collected to Riggin was not a payment to the firm of Riggen & Holbrook, and for this reason the sureties are not liable on the undertaking; but there is nothing in the record to show that Riggen was not the proper person to whom the money should have been paid, and inasmuch as he, as principal, signed the firm name to the undertaking, of which fact the petitioners had knowledge at the time it was executed, we think there is no doubt about their liability, for which reason their petition is denied.
Petition Denied.