Bailey v. Rosenthal

Adams, Judge, delivered the opinion of the court. This was an action commenced before a justice of the peace,where plaintiff had judgment, from which the defendant appealed to the.Circuit Court. During the pendency of the case in the Circuit Court, the plaintiff took a voluntary non-suit, which during the term was, by the consent of the parties, set aside without consulting the sureties on the appeal bond. The case was tried and resulted in a judgment in favor of the plaintiff, which was entered up against the defendant and his sureties in the appeal bond. The defendant and one of the sureties in the appeal bond appealed to the General Term, which affirmed the judgment at Special Term,and they have appealed to this court. No formal assignment of errors has been filed, and the only error assigned in the brief for defendants, and relied on here for reversal, is, that the court permitted the non-suit to be set aside without the consent of the sureties in the appeal bond. •It has never been held in this State, that sureties in an appeal bond are parties to the suit, in the sense that they must be consulted in regard to any step taken in the case before final judgment. If there be any substantial defect in the recognizance, they may object to any judgment being rendered against them, or they m'ay appeal from such judgment, and have the point determined by this court. • . [386] The recognizance, required by our statute on appeals from justices of the peace, is to secure to the appellee the payment of any judgment that may be rendered in his favor against the appellant. (See 2 Wagn. Stat., 847, §§ 3, 4; 851, § 23.) It does not contemplate that the sureties in the recognizance shall prosecute or defend the suit, or in any manner interfere with the proceedings during the progress of the case. Judgment affirmed. All the judges concur.