65 Mich. 225 | Mich. | 1887
The plaintiff brought suit in the circuit court for the county of Muskegon upon the following bond:
“Circuit Court of the County of Muskegon.
«Aaron B. Miner, 1 vs. Plaintiff, ! « Raymond O’Harrow, ( « Defendant. J
«In this cause, judgment having been rendered in favor of the plaintiff on a trial thereof on the eleventh day of June, A. D. 1884, against the defendant, in the sum of fifteen hundred and fifty-seven dollars and costs, and a stay of proceedings having been ordered by said court until the first day of the next October term of said court in said cause to enable the said defendant to settle a bill of exceptions, or move for a new trial therein, on condition that the said defendant file his bond, with one surety, to be approved by the clerk, in the sum of eighteen hundred dollars, within fifteen days from said eleventh day of June; therefore, know all men by these presents, "that we, Raymond O’Harrow as principal, and Alexander Rodgers as surety, are held and firmly bound unto the said plaintiff, his executors and administrators and assigns, in the sum of eighteen hundred dollars; for which payment well and truly to be made we bind ourselves, ■our executors, administrators, and assigns, jointly and firmly by these presents.
«Sealed with our seals and dated the twenty-sixth day of June, A. D. 1884. _ •
_ «The condition of this obligation is such that if the above-bounden Raymond O’Harrow shall pay the judgment aforesaid, and the costs, and interest upon said judgment and costs, if the same shall not be appealed to the Supreme Court of this State, and if the said O’Harrow shall pay, or cause to be paid, any judgment, interest, and costs thereon in the Supreme Court of this' State, in case said cause is appealed to said Court, then this obligation shall be void; otherwise of full force and effect.
«Raymond O’Harrow, «Alexander Rodgers.”
“Whereby, according to the terms, condition, and true intent of said writing obligatory, it became and was the duty of the said Eaymond O’Harrow, the principal in said writing obligatory and the defendant in this suit, to pay the same.”
That such sum, with costs and interest, was demanded of said O’Harrow on the first day of May, 1886, but was not and has not been paid by him, or any part thereof, and that said judgment still remains wholly unpaid.
A second count alleges the recovery of the judgment in the Muskegon circuit court, and the taxation of costs in the cause; that, after the judgment, the said O’Harrow obtained an order staying proceedings for a period in said order mentioned, conditioned upon the filing of a bond, with one sufficient surety, to be approved by the clerk of said court; that such order was granted for the purpose, among other things, of obtaining the benefit of removing and appealing said judgment to the Supreme Court for review; and that afterwards the said O’Harrow, for the purpose of obtaining such benefit and advantage granted and allowed to him by the said order, as well as for the purpose of staying execution upon said judgment pending a decision upon such appeal, executed the said bond, (setting it out in full).
It then alleges that the Supreme Court, at said January term of 1886, affirmed the judgment of the said circuit court,
The defendants demurred, and assigned the following special grounds, to wit:
“1. The said plaintiff does not in said declaration set up any breach of the bond therein set forth and declared on.
“ 2. The facts set up in said declaration show that there has been no breach of the bond therein set forth and declared on.”
The circuit judge sustained the demurrer, setting forth in his order that on the argument “ it having been admitted by the attorney for the plaintiff that the costs of the Supreme Court in the case of Aaron B. Miner v. Raymond O’Harrow, the case in which the bond set forth in the said declaration was given, had been fully paid, and that the claim intended to be made in said declaration is for the amount of the judgment of the court below, and costs and interest thereon,” it is considered, etc.
It is contended, in an able argument in support of the ruling of the circuit judge, that the bond sued upon is not a supersedeas bond, and was not intended as such; that the object of the bond is set forth in the recital of the same, and that the condition cannot be enlarged beyond the recital; that the stay of proceedings and the bond were only for the purpose of giving the defendant until the first day of the October term, 1884, of the circuit court, in which to settle a bill of exceptions or move for a new trial; and that, if either one was done on or before that time, there was no breach of the bond; therefore the declaration fails to show a breach of the same, as it does not allege any failure to file a bill of exceptions within the time limited by the order.
It seems, however, that the bond has been treated in effect as a supersedeas bond, and that the condition of the bond is
Whether it can be regarded as a supersedeas bond, or one required by any statute, or even by the order of the court, is immaterial. It was one that the defendant could agree to give, and the plaintiff could agree to receive. It was given and received and acted upon, and must be held to have been executed by both of the defendants with full knowledge of the terms and import of the condition therein. The bond was given for the benefit and advantage of O’Harrow, and he cannot now escape from his obligation. Rynearson v. Fredbenburg, 42 Mich. 412. The affirmance of the judgment of the court below was a sufficient judgment of the Supreme Court to support the condition of the bond.
The order of the court below is vacated and set aside, and the demurrer is overruled.
The usual time will be granted to plead, if desired; costs upon demurrer below, and of this Court, to plaintiff.
