Hallam v. Stiles

Cassoday, J. It is claimed that the plaintiff’s remedy upon the undertaking, if any, was against Nickey and the sureties jointly, and not against the sureties separately. To make such objection available, it should have been raised either by demurrer (E. S. sec. 2649, subd. 4) or answer (E. S. sec. 2653). Not having been so taken, the defendants must be deemed to have.waived the same. E. S. sec. 2654. It is urged that the record does not show that the appeal was dismissed for want of prosecution. But the trial court so found, and there is no exception to that finding, and hence it must be taken as a verity. The appeal upon which the undertaking was given was taken after ch. 151, Laws of 1876, went into effect. Assuming, for the purposes of this appeal, that that chapter had not, as to these sureties, been superseded by sec. 3067, E. S., still we think the essential conditions imposed by that chapter, to entitle the plaintiff to recover the whole amount for which the defendants were liable on the undertaking, had been complied with before the commencement of this action. That chapter provided, in effect, that in all appeals thereafter taken from a judgment directing the payment of money, to the supreme court, and where the execution should be stayed by a written undertaking in pursuance of the statute, and such appeal dismissed for want of prosecution by the appellant, the respondent might, “after having issued an execution against the appellant, and the same having been returned unsatisfied, either in whole or in part, commence an action on the undertaking so executed, against the appellant and the sureties therein, in the same manner and with the same effect as if the said judgment so appealed from had been affirmed.” The act only refers. to one execution, or, which is the same thing, “ an execution.” The contention is that the act requires two executions to be issued and-returned,— one out of the circuit court and the other out of this court. But the act did not so provide. [273] None was here issued out of the circuit court. There was one issued out of this court and returned unsatisfied. It is claimed, however, that “ there is no sufficient return to the execution issued out of this court.” But it is found as a fact that an execution was issued out of this court for the collection of the costs on the appeal, and that the same was returned wholly unsatisfied. There is no exception to this finding of fact, nor to any other, and hence we are not called upon to scrutinize the record to discover whether the evidence is sufficient to sustain it. The return of one execution wholly unsatisfied, as fully demonstrated the impossibility of making collection out of Nickey as though another execution had been issued and so returned. The fact that the act in question gives the right of action where the execution is returned unsatisfied, either in whole or in part, pretty clearly shows that no more than one execution was contemplated, even where partial collection was made upon the execution issued. Having complied with all the conditions precedent before the commencement of this action, the plaintiff is entitled to recover against the defendants upon the undertaking the same amount as damages that he would had the judgment so appealed from been affirmed. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendants for the amount of their liability upon the undertaking, as above indicated, with the taxable costs and disbursements in this action in the circuit court.