Frevert v. Swift

By the Court, Hawley, J.: Respondent, in September, 1885, recovered a judgment against appellant Swift for seven hundred and sixty-seven dollars and thirteen cents, and eleven dollars and seventy cents, costs of suit. The cause was tried in Ormsby County before Hon. M. A. Murphy, district judge of the third judicial district. For the purpose of procuring a stay of execution on said judgment, pending the hearing of a motion for a new trial therein, Swift, as principal, and appellant Sweeny and Phillips, as sureties, executed an undertaking in the sum of one thousand five hundred and fifty-seven dollars and seventy-five cents, double the amount of the judgment, conditioned “ that said Swift will pay the amount of said judgment, and all costs that may be awarded against him on the hearing of said motion should a new trial be denied, unless upon, the decision of said motion, if a new trial be denied, said. Swift shall give a good and sufficient undertaking on appeal to the supreme court of the state of Nevada, then this obligation to be void; otherwise, to remain in full force and effect.” This undertaking was approved by Hon. T. D. Edwards, district judge of the second judicial district, and an order was thereupon made by said judge staying the execution of said judgment pending the hearing of the motion for new trial. The motion for a new trial was denied. Appellant Swift thereafter filed an undertaking on appeal in the sum of three hundred dollars, in the form required by the statute, for the payment of damages and [402] costs which might be awarded against him on appeal. The questions presented upon this appeal by appellants are: First— Did the court err in overruling a demurrer to the complaint? .Second — Did the court err in permitting respondent to introduce in evidence the judgment roll in the case of Frevert v. Swift? Third — Can appellants be held liable upon the conditions named in the undertaking? 1. Itis argued that the demurrer snould have been sustained, because the undertaking to stay execution “was not approved by the judge who tried the cause in which said undertaking was given”; and itis stated by counsel for appellants that “the judge who approved the same was disqualified from presiding at the trial of the-cause.” It does not appear from any averment in the complaint that the judge who approved the undertaking ■was disqualified; hence this point could not be raised by a demurrer. The question whether the judge was disqualified was a question of fact, to be determined from the evidence submitted at ihe itrial of this -cause. In this connection we deem it ¡proper to state ;that we have carefully examined the statement on .appeal, and .have been unable to find any evidence, or the .statement of any fact, touching the disqualification of the district judge. It is true that counsel for appellant “objected to ‘the introduction of said hond in evidence, upon the ground that said bond was not .approved as required by rule 26 of said ■oourt, it appearing that Hon. T. D. Edwards, who was disqualified from trying said cause, * * * had approved said bond”; but this cannot be considered as evidence, or as a statement of a fact. How did it appear that the judge was disqualified? It did not appear from any of the averments in the complaint. It did not appear from an}*- statement in the undertaking. There is no such statement in the judgment roll, and there is no evidence or statement of such fact, if it be a fact, in the statement on appeal. “ If counsel wish to establish a fact on which this court can act, they must do it by the introduction of evidence, the admission of the opposite counsel, a certificate of the judge who tried the case, or a positive statement of the circumstances as having in some way been shown on the trial.” (State v. Manhattan S. M. Co., 4 Nev. 329; Doll v. Anderson, 27 Cal. 252; Clark v. Sawyer, 48 Cal. 141; Doyle v. Franklin, 48 Cal. 540.) Rule 26 of the district court does- not require that the undertaking to stay execution shall be approved by the [403] judge who tried the case. Its provisions are that no stay of execution upon motion for new trial shall be granted except “ on the giving of a good and sufficient undertaking, in manner and form as other undertakings are given, to be approved by the judge. * * *” Under the provisions of this rule the district judge of the district where the cause was tried, unless disqualified, could approve the undertaking, notwithstanding the fact that the case had been tried before another judge. 2. The objection to the admission of the judgment roll in Frevert v. Swift, on the ground of a variance between the averments of the complaint and the judgment roll, is frivolous. The complaint alleges that the plaintiff in said action recovered a judgment for seven hundred and seventy-eight dollars and eighty-three cents. The judgment roll show's that plaintiff recovered a judgment for seven hundred and sixty-seven dollars and thirteen cents, and costs taxed at eleven dollars and seventy cents, making a total of seven hundred and seventy-eight dollars and eighty-three cents, as averred on the complaint. 3. The undertaking on appeal in the sum of three hundred dollars was not sufficient to stay execution on the judgment. (Gen. Stat. 3364.) It was not “a good and sufficient undertaking on apppeal,” within the contemplation of the provisions of the undertaking given by appellants to secure a stay of execution pending a motion for a new trial. As the conditions of the bond were not complied with, it follows that the sureties thereon were not released from liability. The judgment of the district court is affirmed.