Railsback v. Greve

Pettit, J. This suit was brought by the appellees, Henry Greve, Julius Eschman, and William Buhrlage, against Jason Ham and Joel Railsback, on a bond for an appeal to this court from a judgment in favor of the appellees against Ham, Railsback being surety on the bond. Ham died after the commencement of the suit, and before any action was had in court, and the suit was prosecuted against Railsback, the -surety on the bond. [272] The defendant demurred to the complaint for want of sufficient facts, which demurrer was overruled. This ruling is assigned for error. The objections to the complaint are, that it does not show when the judgment was affirmed in the Supreme Court, or when, if ever, the opinion and judgment of affirmance were filed in the office of the clerk of the court below. For anything that appears in the complaint, the judgment might have been affirmed on the same, or the day before this suit was brought on the appeal bond. There was no right to proceed to collect or demand payment of the affirmed judgment until after the sixty days given for filing a petition for a rehearing had expired, and a certified copy of the opinion and judgment of affirmance had been filed in the office of the clerk of the court below. Rule 25 of this court; 2 G. & H. 276, sec. 571; 2 G. & H. 272, sec. 2; Poppenhusen v. Seeley, 41 Barb. 450. The demurrer to the complaint should have been sustained. "We will notice no other alleged errors, because they might not have occurred if the ruling on the demurrer to the complaint had been correct. The complaint is the foundation of the action, and if it is valueless the superstructure built on it must fail. The judgment is reversed, at the costs of the appellees, with instructions to the court below to sustain the demurrer to the complaint, and for further proceedings.