The consideration of the undertaking of these delators was a stay of execution pending the determination of the appeal from the District to the Supreme Court in the case of Beck v. O'Connor et al., 21 Mont. 109, 53 Pac. 94. If ho stay c'oú'ld have been had until the judgment of this Court has rendered, the sureties might never have executed the bond. Certain present conditions often exist under which a man will assume a liability upon an appeal and stay bond which under other circumstances he would not. The suspension of a levy under an execution against a judgment debtor until his appeal can be heard by the Supreme Court may operate so advantageously to such an appellant as to impose upon the sureties on the stay bond comparatively slight risk of eventually having to pay the judgment appealed from should the same be affirmed; while a levy before the appeal is heard and determined might have the effect of ruining the appellant, and removing every opportunity, otherwise close at hand, to prepare himself to pay the judgment, if affirmed, and to protect his sureties against payment on their part. Stay of execution being a consideration of great value, sureties who execute an undertaking therefor have a right to rely upon the letter of their bond, and to stand upon the entirety of the expressed consideration therein, and their liability cannot be extended by implication. (Smith v. Lovell, 2 Mont. 332.) This principle is formulated in Sections 3680 and 3681 of the Civil Code, which provide that a surety cannot be held beyond the express terms of his contract, and that, in the interpretation of the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts. In the application of these general rules it is necessary that relators be secured the consideration, and the entire consideration, named in the express terms of their bond or undertaking, unless they have done that which has excluded them from the benefits of the rules. Let us see if they have. The record shows that they agreed that, in consideration of a stay of execution of the judgment appealed from, they became bound in the sum named in the undertaking that if said judgment ap
But what occurred ? Nearly a whole year before this Court handed down its opinion in the appealed suit of Beck v. O'Connor et al., supra, affirming the judgment of the lower court, execution on the judgment appealed from had been issued by an order of the district court, made at the instance of respondents Cooperand O’Connor, the property of the appellant Beck had been levied upon and sold, and the proceeds of such sale had been applied on the judgment appealed from. So far, this action of respondents was in total disregard of the contract of the sureties, and put the respondents in an attitude of announcing to the sureties that, as respondents, they would no longer rely upon the undertaking for a stay, but had abandoned the same, and had resorted to their execution by levying upon the appellant’s property.
Now, we inquire whether the bondsmen can avail themselves of this action of respondents to claim exoneration from liability on the stay bond. Counsel say the sureties cannot, even though their contract is express in its terms, because of their omission to justify on the stay bond, as required by Section 1732 of the Code of Civil Procedure, after exception to their sufficiency was made in due form by O’Connor and Cooper. This omission, it is argued, was the sureties’ own act, and, because of it, execution was no longer stayed; wherefore it is concluded that O’Connor and Cooper, respondents in the appealed suit, had a right to proceed under the execution, and, if the judgment was not satisfied by the execution against Beck, they could still hold the sureties should the judgment be affirmed on appeal to this Court. This argument has an unsound basis, for it necessarily involves the proposition that a justification to an undertaking, if required of the sureties
It is hardly necessary to add that, in discussing the liability of the sureties on the stay bond, we do not mean to imply that the bond is not good to perfect the appeal itself. We believe it is. (Schacht v. Odell, 52 Cal. 447; Hill v. Finnigan, 54 Cal. 311; Hayne, New Trials and App. p. 678. ) Our opinion only goes to the effectiveness of the obligation to secure the ancillary relief of staying execution on the judgment from which the appeal is prosecuted.
2. As to remedy by certiorari: Was the action of the district court in entering judgment in favor of the respond
The case is one, therefore, where the action of the court in entering judgment against the sureties, and authorizing execution thereunder to be issued, was more than a mere irregularity or error of law occurring in the course of proceedings
It is therefore ordered that the judgment and order of, the district court in and for Carbon county, made and entered on November 21, 1898, against these relators as sureties upon the stay bond in the case of Beck v. O’Connor, in so far as it affects said relators as sureties on the stay bond, be, and the same is hereby, set aside and annulled.
ON PETITION FOR RE-HEARING.
[Submitted May 5, 1899. Decided May 15, 1899.]
Defendant’s counsel pray for a re-hearing, calling our attention to the fact that it appears by the record in the case of Beck v. O’Connor et al. cited in tbe opinion, that on May 18th, 1897, execution was issued directed to the sheriff of Gallatin county, who levied upon and advertised for sale certain real estate of Beck, but that about July 1st, 1897, Beck caused a writ of injunction to be issued out of the district court of Gallatin county restraining the sheriff from making a sale ; whereupon the sheriff returned said execution without making such sale or the sale of any property under the execution. The district court dissolved the injunction but continued it in force pending an appeal to this Court. On appeal the order of the lower court dissolving the temporary injunction order was affirmed on May 9th, 1898. (Beck v. Fransham, 21 Mont. 117.) It therefore appears that no property was ever sold under the execution issued to the sheriff of Gallatin county,' nor was any other execution issued until after the judgment in the case of Beck v. O’Connor et al., was affirmed by this Court on May 9th, 1898.
These dates and facts disclose that the petition of relators for the writ of certiorari erred in its allegation that the
However, after consideration of the facts as modified, we are unable to change our opinion as to the legal principles applicable to the case. It matters not that the judgment debtor Beck insisted in Beck v. Fransham,, supra, that the execution, of the bond operated as a stay, notwithstanding the fact that the sureties failed to justify, for his contention could not modify the contract of, or impose any liability upon, the-sureties on the stay bond not included in the bond itself, — and. it is the sureties’ rights which are here involved. O’Connor and Cooper having caused the execution to issue and the property of Beck to be levied upon pending the appeal, must be-regarded as having elected to release the sureties, and as having waived their rights to thereafter insist upon the sureties’ liability; and it matters not that an actual sale was prevented, the intervention through which the sale was stopped having-been a proceeding to which the sureties were not parties and with which they had nothing to do.
O’Connor and Cooper cannot play fast and loose by suing-out and levying execution, thus violating the contract, yet afterwards have it enforced for the reason that execution was stayed the stay not having been procured at their instance: If: the property of Beck turned out to be insufficient to pay the-judgment, the sureties ought not to be responsible for the deficiency, for they had long before been released by the acts of. O’Connor and Cooper. The motion must be denied.
Motion denied..