8 Utah 54 | Utah | 1892
Plaintiff sued the Jarvis-Conklin Trust Company before a commissioner and obtained judgment. The company gave notice of appeal, and in said appeal defendants gave their bond. It was filed one day too late before the com
The contention of appellant is that the court erred in dismissing the case and refusing to give judgment for plaintiff. We think this contention is well taken. The defendants cannot deny the validity of the bond, because they are estopped from denying its recitals. The first, bond recites that it is given for costs, and the second that it is given to stay the operations of a judgment and the record shows that judgment was stayed by means of the undertaking. It says: “In consideration thereof, and of such stay of proceedings, and of the premises, jointly and severally undertake and promise,” etc. Now, it would be an outrage on justice and fair dealing to allow these defendants to plead that they were not liable on these undertakings, because they .were filed one day too late, after they have operated to stay the proceedings, as they were intended. When sued upon an undertaking of the nature of these, the obligors are estopped from denying their recitals. Arnott v. Friel, 50 Ill. 174; Trimble v. State, 4, Blackf. 435; Smith v. Whitaker, 11 Ill. 417; Adams v. Thompson (Neb.), 26 N. W. Rep. 316. We think these