60 Mich. 73 | Mich. | 1886
The plaintiff sued defendants upon an appeal-bond, the condition of which was as follows:
*74 “Whereas, the above-named Peter N. Ellair has appealed to the Supreme Court of the State of Michigan, from the decree and final order of the circuit court of Wayne county, in chancery, made February 7,1884, in a cause in which the above-named Alexander Micliie was complainant, and said Peter N. Ellair, defendant. Now, therefore, the condition of this obligation is such, that if said appellant shall perform and satisfy the decree or final order of said Supreme Court, in said cause, and shall pay all costs of said appellee in the matter of appeal that may be awarded against said appellant, then this obligation to be void, otherwise to remain in full force and virtue.”
This bond was filed under the statute as amended in 1877, which provides that the condition of the bond shall be in substance as the above condition.
Upon the trial in the circuit court, the plaintiff made proof of a decree in his favor in the circuit court for the county of Wayne, in chancery, in a cause wherein the plaintiff was complainant, and the defendant, Peter N. Ellair, was defendant, establishing the title of the complainant to certain real estate in said county of Wayne, with costs of suit taxed against said Ellair for $48.20 ; that Ellair appealed said cause to the Supreme Court, and this -bond was given on such appeal; also the duly certified copy of an order of the Supreme Court affirming the decree of the circuit court, in chancery; also the bond on appeal, and that the costs in the circuit court, in chancery, had not been paid.
The defendants then showed that the costs in the Supreme Court had been paid, and that no execution had ever been issued from the circuit to collect the costs taxed in that court. Thereupon the circuit judge instructed the jury to find for defendants, which action is assigned as error.
The only question involved under this assignment, is whether or not the plaintiff was entitled to a verdict against the defendants, for the costs taxed in the circuit court, in chancery. The order of the Supreme Court gave the complainant in the chancery cause “his costs to be taxed,” which only had reference to the costs in this Court.
The statute in relation to appeal bonds of this kind, previous to the amendment of 1877, provided that the condi
Under a bond executed in compliance with this statute, we held that the sureties upon the bond were liable for the costs taxed in the circuit, as well as in this Court: Daly v. Litchfield, 11 Mich. 497; Prosser v. Whitney, 46 Mich. 407.
The intention of the Legislature in amending the statutory condition of the appeal bond, must have been to limit, as it did in express words, the liability of the obligors to the payment of the costs upon the appeal proceedings.
The undertaking of the sureties cannot be enlarged by the courts. These sureties, defendants, only obligated themselves to pay the costs “ in the matter of appeal.” In signing this bond with such a condition they complied with the statute then and now in force, and it is only just that they be required to fulfill no more than they agreed to.
It is argued that the Legislature intended to require the appellant to give security for the satisfaction or performance of the decree of the lower court, to the extent that should be by the decree required of him; and that a part of that decree beiDg that he should pay the costs taxed against him, the sureties upon the bond are liable for these costs. If this be true as to the costs in the court below, then, under the same reasoning, the sureties would be liable as security for the payment of a money decree in that court. But it was held in Kennedy v. Nims, 52 Mich. 153, that such was not the proper construction of the old statute, which, as to the condition of performance or satisfaction of the decree, did not differ from the present law. “It (the bond) is not intended as an additional security for the original indebtedness, but as an indemnity to the appellee against further trouble, expense, and costs while the case is undergoing a review in this Court.” See also Kountze v. Omaha Hotel Co., 107 U. S. 378, 391.
The judgment below is affirmed, with costs.