54 Colo. 365 | Colo. | 1913
delivered the opinion of the court:
The action belo-w was on an appeal bond given by one Mrs. Curley, with the plaintiff in error as surety. Mrs. Curley had been convicted in a police court in eleven different cases for violations of an ordinance of the town of Marble. A fine was assessed in each case. The fines aggregated $3,200.00, for which amount the bond was given. While there was but one bond, the recitals therein showed the charge and conviction, and the amount of the fine in each of the eleven cases, and that an appeal was taken in each and the
It was urged by demurrer and otherwise in the court below, and is urged here, that the complaint did not state facts sufficient to constitute a cause of action. This objection seems to be based in this court on two grounds:
1. The complaint alleged that after the cases were taken to the county court such action was had in that court that each of the “said actions” was dismissed. The contention is that it appears in the complaint that the actions, or suits, or causes were dismissed, and that therefore no cause of action was stated. This would be true if the word “actions” was used in the complaint in the sense of suits, or causes, or in the sense it is used in our code when referring to a civil action, for if these were dismissed the judgments would have been wiped out. It is clear that the word “action” was not used in that sense in the complaint, for immediately thereafter it speaks of each of “said causes” as having been remitted to the police court, and alleges that Curley failed and refused to pay the judgments and that each of the judgments was still due and unpaid at the time of the filing of the complaint, all of which was admitted by the answer. If the causes, the suits, the civil actions, (for they were civil actions, — Greeley v. Hamman, 12 Colo. 94; Weiss v. The People, 39 Colo. 374), were dismissed, and it was intended to so allege in the com
2. The bond was conditioned that if Mrs-. Curley should prosecute the appeals with effect and pay off any judgment or judgments that might be rendered by the court, upon dismissal or trial of the appeals, or would surrender herself in satisfaction of any such judgment or judgments, and if she would appear before the county court on the first day of the next term, and be and remain at and abide the order of the county court, and not depart the court without leave, etc., then the bond to be void, otherwise in full force and effect. The contention in this court seems to be that the complaint should have negatived all the conditions, whereas all it said was that Mrs. Curley failed and refused to pay the judgments, or any part thereof, and that the said judgments and each of them were still due and unpaid. No such contention was made in the lower court. It was there contended that the complaint only negatived the payment of the judgments-; whereas, as was said, it should also negative the condition that Mrs. Curley would surrender herself in satisfaction of
It is also contended by the company that the bond is not in statutory form and that such a bond was never before filed in a court. This may all be true, but it is not necessary to dwell long upon this contention. As a matter of fact, through the instrumentality of this bond, as was intended, proceedings were stayed in the magistrate’s court in all of the cases, and they were transmitted to the county court. It was entered into voluntarily. It was an obligation founded on a valuable consideration and which consideration was delivered. By its terms, for this consideration, the board recited that if the appeals were dismissed and Mrs. Curley did not pay the judgments or surrender herself in satisfaction thereof, it would remain in full force and effect. It was not against public policy. The company had the right to enter into such an obligation whether in statutory form or some other form, and having done so, and having received the consideration therefor, the bond is enforcible according to its terms and provisions.— Abbott v. Williams, 15 Colo. 514; Dry Goods Co. v. Livingston, 16 Colo. App. 257.
Perceiving no error in the record, the judgment is affirmed. Judgment affirmed.