Reynolds v. Cox

108 Ala. 276 | Ala. | 1895

HEAD, J.

To justify an appellate court in rendering a summary judgment against sureties upon an obligation, executed as and for an appeal bond, it is not si Sa-cien t that the obligation be good merely as a common law bond, it must be in substantial compliance with the terms of the statute. — State v. City Council of Montgomery, 74 Ala. 226 ; Quinn v. Adair, 4 Ala. 315. An acknowledgment, that a person becomes security “for all costs and damages as may be sustained by defendant by reason of the appeal,” is evidently not the equivalent of an agreement ‘‘to pay such judgment as may be rendered” against the plaintiff by tlie court to which the cause is sought to be removed, required by section 3399 of the Code, to be given on appeals from a justice’s court to the circuit court. The circuit court was, therefore, without authority to render a summary judgment against the appellant, who was simply a surety, and its judgment, to the.extent we have indicated, must be here reversed and annulled. There is no occasion to remand the cause.

Reversed and rendered.