47 Neb. 322 | Neb. | 1896
This was an action brought by James H. Johnson against David Reed in the county court upon the following appeal undertaking:
*323 “The State of Nebraska, Douglas County.
“James H. Johnson, plff., v. Georgianna E. Crossle and Henry W. Crossle, defts.
“Before A. C. Read, a justice of the peace of Omaha precinct, Douglas county, Nebraska.
“Whereas, on the 27th day of December, 1888, James H. Johnson recovered a judgment against Georgianna E. Crossle and Henry W. Crossle before A. C. Read, a justice of the peace, for the sum of $156.98, and costs of suit taxed at $2.50, and the said defendants intend to appeal said cause to the district court of Douglas county:
“Now, therefore, I, David Reed, do promise and undertake to the said James H. Johnson, in the sum of three hundred and thirteen dollars, that the said Georgianna E. Crossle and Henry Crossle shall prosecute their appeal to effect, and without unnecessary; delay, and that said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs.
“David Reed.
“Executed in my presence, and surety approved by me, this 5th day of January, 1889.
“A. C. Read,
“Justice of the Peace.”
The petition alleges the execution and delivery of the undertaking, the approval thereof, the prosecution of the appeal to the district court, the recovery therein by the plaintiff of a judgment against Henry W. Crossle for the sum of $182.90' and costs of suit, and that the whole of said judgment is unpaid. The answer sets up affirmative,
“1. No evidence has been introduced showing that this defendant ever signed any bond as in the petition herein alleged.
“2. No execution has been issued in pursuance ■of the judgment in said petition alleged to have been obtained against the principals in the bond, nor any proof that any attempt has been made to ■collect such judgment from the said principals.
“3. That there was an alteration in the terms of the bond in the said petition pleaded without the consent of this defendant.
“4. That there was an alteration of the relations between the principals'named in the bond in this petition pleaded.”
This motion was sustained by the county court, and the cause dismissed. Thereupon plaintiff prosecuted error to the district court, where the judgment and ruling of the county court were sustained. To obtain a reversal of said judgment of .affirmance is the object of these proceedings.
Did the district court err in affirming such judgment of the county court? The proper determination of the question requires an examination and •consideration of the different grounds set forth in the motion to dismiss, which we will take up in their order.
As to the lack of evidence on the part of plaintiff to show that the defendant signed the appeal undertaking, all that we need say is that the answer admits the signing of the instrument by
The second ground urged for the dismissal was equally untenable. There is no provision of statute which requires that an execution shall be issued upon a judgment before an action can be maintained upon an appeal bond. The conditions, in the bond in suit are in the language of the statute, — that appellants will prosecute their appeal to effect and without unnecessary delay, and that said appellants, if judgment be adjudged against, them on appeal, will satisfy such judgment and costs. Upon the recovery of the judgment, against the principal in the bond the surety became at once absolutely liable for the payment thereof, upon the default of the principal to do so. The right of action accrued upon the bond upon the rendition of the judgment; and the failure to-issue an execution is no defense. (Flannagan v. Cleveland, 44 Neb., 58.)
The third ground of the motion is without merit. The question of the alteration of the terms of the bond could not have arisen at the time plaintiff closed the case; but in any event no such issue was tendered by the pleadings. The alleged alteration pleaded in the answer consisted in the continuance of the cause from which the appeal was taken, when it was reached for trial, without, the knowledge and consent of the surety. This, constituted no defense, as it did not operate to> release the surety. (Howell v. Alma Milling Co., 36 Neb., 80.)
We presume the decision in the county court, as-well as in the district court, was based upon the fourth or last subdivision of the motion. The judgment from which the appeal was taken was
None of the reasons assigned in the motion made in the county court for granting a dismissal of the cause being well taken, and no other sufficient cause appearing for sustaining said motion, the district court erred in affirming the judgment of the county court. The judgment of the district court must be reversed and the cause remanded to that court, with directions to reverse the judgment of the county court.
Reversed and remanded.