Robertson v. Davidson

By the Court McMillaw, J. The condition of the undertaking upon which this suit is brought is “ for the prosecution of the said action, for a return of .the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against the plaintiff.” The undertaking is not collateral in its nature, but is in effect an affirmative obligation on the part of the signers of [556] it, to return the property to the defendant in the replevin action, upon a judgment to that effect, and to pay him such sum as may for any cause be recovered against the plaintiff in that action. By the terms of the instrument, therefore, upon the recovery of the judgment by the defendant in the action of replevin in the district court, the signers of the undertaking became liable to Robertson upon that instrument. In the matter of Argus, 7 Wend., 499 ; Livingston vs. Hammer, 7 Bos. 671; Burrall vs. Vanderbilt, 1 Bos., 643. No statutory provision exists in our state requiring that an execution upon the judgment be issued by the party to whom the undertaking is given, in order to maintain an action on such undertaking. The cases of Cowden vs. Rease, 10 Wend., 334, and same vs. Stanton, 12 Wend., 120, cited by the appellant, and relied on as requiring the issuing and return of an execution before an action can be maintained, are based expressly upon the statute of New York, and show that in the absence of such statute that step is not necessary. It may be remarked, however, that in this case an execution was issued upon the judgment in the district court, and the proper return thereon made before the action was commenced. The action having been instituted before the appeal from the judgment was taken, unless the appeal, or the judgment .thereon in the supreme court, operated to supersede and take away the plaintiff’s right of action, or defeat his recovery in the action, the judgment in this case is correct. Ve will consider first the effect of the appeal. An appeal is purely a statutory right, —Hilliard on New Trials, 556, sec. 2; Tierney vs. Dodge, 9 Minn., 168, — and where statutory provisions exist defining and regulating its character and effect, they must prevail. The provisions regulating appeals [557] to tbe supreme court in our state, are found in chapter 86, of the General Statutes, p. 576-8. Section 15 of that chapter provides as follows : “ "Whenever an appeal is perfected as provided by sections eleven, twelve and fourteen, it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein ; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from.” *. * * Upon the perfection of a judgment subject to revision by appeal, the party in whose favor it is rendered is not compelled to await the expiration of the period allowed for such appeal, but may, in the absence of such appeal, proceed to the execution of'the judgment. Freeman & Elwell vs. Patten, 1 J. J. Marsh., 193. The only effect, it seems to us, which can be given to an appeal under the section above cited, is that it operates to stay or suspend the proceedings which may have been taken at the time the appeal is perfected, in the condition in which they then exist, and to prevent any further step or proceeding on the judgment or matter embraced .therein. Burrall vs. Vanderbilt, cited ante; Clark vs. Clark, 7 Paige, 607; Burr vs. Bwrr, 10 Ib., 169; Cook vs. Dickerson, 1 Duer, 679 ; First National Bank &c. vs. Rogers et al., 13 Mmn., 407. If this is correct, (whether the remedy upon the undertaking is effected by the appeal f|* not, which we do not determine*,) the action in this case having been commenced prior to the appeal, the plaintiff’s right to bring the suit is not affected by the appeal. The appeal operating as a mere stay of proceedings, upon its determination, of course, its effect ceased, and the plaintiff might properly proceed in the action, and as no step was taken by the plaintiff in this case after the appeal, until it [558] was determined, so far as tbe appeal is concerned bis proceedings were regular. We are then to consider the effect of the judgment of this court upon the plaintiff’s action on the undertaking. The action was originally based, as appears from the complaint, upon the judgment of the district court, from which the appeal was taken. The supplemental complaint sets up the judgment in this court upon the appeal, “whereby it is determined that th.e judgment of the district court be modified,” and that the plaintiff, the respondent in the appeal, recover certain damages, &c. The judgment in this court being only a modification of the judgment below, is an affirmance in part of that judgment, and as the modification only extended to change the amount of the recovery obtained in the district court, the judgment, so far as it operated to fix the liability of the signers of the undertaking, was affirmed, the plaintiff’s right of action upon the undertaking therefore, was not affected, and as the judgment in this court was a final disposition of the appeal, it determined the stay of the plaintiff’s proceedings in the action. We are therefore of opinion that the judgment in this court did not supersede or defeat the right of action which accrued to the plaintiff by the entry of judgment in the district court. But the judgment entered in this court by the stipulation of the parties, is not in t® ordinary form of a judgment in an action of replevin, but is in the usual form of a judgment for the recovery of money only. It is claimed by the appellants, that by the entry of the judgment in this form, the sureties in the undertaking were discharged. We have already seen that the undertaking given by the defendants in this action is, as between them and the plaintiff, an original obligation, and the defendants were not sureties but [559] original promissors or obligors. The principles applicable to sureties, therefore, do not apply in this action. By the terms of the undertaking, the defendants agreed and became liable, not only to return the property, if a return was adjudged, but to pay to the plaintiff such sum as might, for any cause, be recovered against the defendant in the action of replevin. It is true, the correct and usual form of judgment in replevin is in the alternative for a return of the property, or for the value thereof; the judgment as entered in this case, therefore, is irregular; but it is irregular only, and not void. Its regularity cannot be impeached or inquired into collaterally ; it cannot, therefore be attacked in this action. Gallarati vs. Orser, 4 Bos., 105. The defendants, therefore, are liable on the undertaking for the amount recovered in the action of replevin, and the plaintiff is entitled to judgment therefor. The judgment of the court below is affirmed.