84 Neb. 577 | Neb. | 1909
This was an action upon two certain appeal undertakings executed by the city of Blue Springs, as principal, and the defendant the United States Fidelity & Guaranty Company, as surety, to perfect appeals to the district court from judgments rendered in the county court in favor of the plaintiff and against the above named city. There was a judgment for the plaintiff, and the defendant the United States Fidelity ■& Guaranty Company has appealed.
A similar case was before the supreme court of Alabama, Johnson v. Flint, 34 Ala. 673. In that case the stipulation was as follows: “It is agreed in this case that judgment be affirmed on the following terms: Four hundred dollars shall be deducted from the verdict, and the judgment shall be affirmed for $2,332.19, with interest
It would seem that this case should be ruled by the decision just quoted. In the present case, before any breach had taken place in the condition of the bonds, the creditor and the principal debtor, without the consent .of the sureties of the latter, entered into a new agreement, founded upon a sufficient consideration, for the mutual advantage of each other, by which they stipulated that the act for which the sureties had become bound, viz., the prosecution of the appeals in the district court to effect and without delay, should not be performed. No matter how numerous the errors disclosed by the record in those cases, this new agreement effectually prevented their correction by the district court. We are therefore of opinion that by the conduct of the parties the surety was released from any liability on the appeal bonds in question.
The judgment of the district court is therefore reversed and the cause remanded for further proceedings.
Reversed,