Vandyke v. Weil

By the Court, Dixoír, 0. J. Tbe stipulation for judgment is not a waiver of the plaintiff’s right to appeal. Tbe object of the stipulation manifestly was to fix tbe amount of costs and to waive notice of tbe taxation and entry, and it would be [280] most unjust to extend it by implication so as so cut off any other right or privilege. Note. — On a motion for a rehearing, the counsel forthe respondents argued that the condition of the undertaking was that the judgment appealed from should be affirmed; that the judgment in this case was not affirmed but modified (comp. R. S., ch. 139, sec. 7); and that it is only in the case of an undertaking given under sec., 16 of said ch. 139, that the parties executing it are bound if amn¡ port of the judg'ment is affirmed. Counsel also cited as to the strict construction of contracts of suretyship, Cro. Jac., 45; Yelv., 52; Hassell v. Long, 2 M. & Sel., 363; Peppin v. Cooper, 2 B. & Ald., 431; Sansom v. Bell, 3 Campb., 39; African Co. v. Mason, 1 Stra., 227; Payler v. Homersham, 4 M. & Sel., 423; Burge on Suretyship, 40; Evans v. Whyle, 5 Bing., 485; Drummond v. Husson, 4 Kern., 60.—The motion was denied.—Rep. [280] As to the undertaking, we think it would be deviating from the statute and violating the plain purpose of she legislature, to hold the sureties discharged in a case like t ns. Joint appeals and joint undertakings on the part of two or more plaintiffs or defendants are authorized by statute. Such has been the constant practice, and it has never been que stioned by the profession. A strictly literal construction of tl e language of the undertaking in such cases, would defeat the main object of the law in requiring it to be given. In very few cases, where the words of the statute had been pursued, could a recovery be had upon the undertaking, if the makers thought proper to object. The intention of the legislature clearly was to make the undertaking effectual, to secure some benefit to the respondent, in case the judgment was affirmed in any part, or as to any of the appellants; and to attain that object a liberal interpretation is allowable. Such is the language of the authorities, and, no doubt, the correct rule of law. We are to construe the undertaking in conformity to the intention of the act under which it was made, and with reference to which the makers must be supposed to have executed and delivered it, giving to both a fair and liberal interpretation to attain the end in view. If it be conceded, then, that it was a joint appeal and undertaking on the part of Mr. and Mrs. Weil, still the sureties are bound — bound for Mr. Weil individually, as they would have been for both, had judgment against both been affirmed. In legal effect it is the same as if the words of the condition had been joint and several, or as if separate undertakings had been given for each. The judgment of the circuit court must, therefore, be reversed, and the cause remanded for further proceedings according to law.