Fitzgerald v. Wellington

The opinion of the court was delivered by Valentine, J.: The only question involved in this case is as follows: Where a judgment is rendered by a justice of the peace in favor of the plaintiff and against the defendant, and the defendant appeals to the district court, and afterward dismisses his appeal, are the sureties- on the appeal bond liable for the amount of the judgment rendered in the justice’s court, [462] or only for the amount of the judgment for costs rendered in the district court ? This question is purely one of statutory construction. The statutes applicable to the case, to wit, §§121, 124, and 129, of the justices code, provide among other things as follows: “Sec. 121. . . . [The condition of the appeal bond or undertaking must be as follows:] First, That the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, That if judgment be rendered against him on the appeal, he will satisfy such judgment and costs.” “Sec. 124. . . . If the appeal be dismissed, the cause shall be remanded to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken.” “Sec. 129. When any appeal shall be dismissed, or when judgment shall be entered in the district court against the appellant, the surety in the undertaking shall be liable to the appellee for the whole amount of the debt, costs, and damages recovered against the appellant.” We think the foregoing question must be answered that the sureties are liable for the judgment rendered in the justice’s court. The statutes provide that the condition of the appeal bond must be “that the appellant will prosecute his appeal to effect, and without unnecessary delay; ” and also that “ when any appeal shall be dismissed, . . . the surety in the undertaking shall be liable to the appellee for the whole amount of the debt,- costs and damages recovered against the appellant.” Now when the appeal is dismissed from the district court, no judgment for any “debt” or “damages” is ever rendered in that court, but only a judgment that the appeal be dismissed, and in favor of the appellee for the costs which have accrued in the district court; hence we think that the debt and damages for which the sureties on the appeal bond are to be held liable in such cases, are the debt and damages recovered by the appellee against the appellant in the justice’s court. The judgment of the court below will be affirmed. All the Justices concurring.