Jewett v. Shoemaker

Ladd, J. The plea in bar was good. By the terms of the supersedeas bond, the sureties promised “ to satisfy and perform the judgment or order appealed from in case it shall [563] be affirmed and any judgment or order which the Supreme Court may render or order to be rendered by the inferior court.” If for any reason the judgment ought not to have been affirmed, that issue should have been raised by the principal. The sureties agreed to bide the result. Phelan v. Johnson, 80 Iowa, 727; Drake v. Smythe, 44 Iowa, 410. See McConnell v. Poor, 113 Iowa, 133. The judgment of the district court against the insurance company was, in effect, affirmed by the dismissal of the appeal, and the appellee moved in this court for judgment p gainst the sureties in accordance, with the condition of their bond. This was authorized by section 4140 of the Code, which declares that “ the Supreme Court, if it affirms a judgment, shall also, if the appellee asks or moves therefor, render judgment against the appellant and his sureties on the appeal bond for the amount of the judgment, damages and costs referred to therein in case such damages can be accurately known to the court without an issue and trial.” The remedy was a part of the obligation, and in executing the latter the sureties waived the right to insist upon another. As they were parties to the record, though not to the suit, notice to them of the motion for judgment on the supersedeas bond was not essential. But they had the right to' appear and interpose any defense they might have to the rendition of judgment. Phelan v. Johnson, supra. This is precisely what plaintiffs did. They insisted that they were entitled to be heard, and asserted that this court was without jurisdiction, for that no notice of appeal had been served. In overruling the resistance, the defense was denied, and properly so, for the abstract showed that the-notice had been served,, and no other proof was offered. The very issue now presented was determined against the sureties, and, as the court had jurisdiction to pass upon the question, and so did, .the' adjudication was final and should not be tried a second time in this or the district court.— Affirmed,' ■■