151 Mo. App. 256 | Mo. Ct. App. | 1910
This is a suit on an appeal bond. Defendant demurred to the petition on the ground that it failed to state facts constituting a cause of action. The demurrer was sustained, plaintiff elected to stand on the petition, judgment was rendered for defendant and plaintiff appealed.
Material facts alleged in the petition are as follows : John McGraw brought suit in the circuit court of Jackson county to recover damages laid at $12,000, sustained by him on account of the conversion of some cattle by defendants. In addition to an answer, defendants filed a counterclaim. A trial to a jury resulted in á verdict for McGraw for $11,472.81 on his cause of action and for the defendants for $7643 on their counterclaim. McGraw filed a remittitur of $1500' and judgment was rendered for him on the verdict for $2229.81. Defendants were granted an appeal to the Supreme Court and gave an appeal bond which the present defendant executed as surety. On motion of McGraw, the Supreme Court transferred the cause to this court on jurisdictional grounds. This court heard the cause and affirmed the judgment of the circuit court. The judgment was not satisfied and McGraw having died
The bond is conditioned: “Now if said appellants shall prosecute their appeal with due diligence to a decision in the Supreme Court of the State of Missouri and shall perform such judgment as shall be given by the said Supreme Court or'such as the said Supreme Court may direct the circuit court to give and if judgment of said circuit court, or any part thereof, be affirmed and said appellants shall comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against them by the said Supreme Court, this obligation to be void; otherwise to remain in full force and effect.”
It will be observed this condition is the same as that of the appeal bonds considered by this court .in Craner v. Reardon, 39 Mo. App. 306, and in Brookshier v. McIlrath, 112 Mo. App. 687, where we held that the bonds did not extend the obligation of the sureties to include judgments rendered by any other appellate court than the Supreme Court. The rule is firmly fixed that a surety has the right to stand on the, letter of his bond and that his obligations will not be 1 enlarged by implication. The letter of the bond before us restricted the liability of defendant to responding to the judgment of the Supreme Court and we could not enlarge that liability without doing violence to the terms of the contract of suretyship.
In the case of Zellars v. Surety Co., 210 Mo. 86, the bond was conditioned differently and because of the difference the surety was held liable but the rule of the decisions of this court to which we have referred was recognized and approved in its application to cases, such as the present, where the appeal is “so worded by accident or design as to limit the liability of the surety to the affirmance of a judgment by a