Bell v. Walker
| Decision Date | 17 March 1898 |
| Docket Number | 9376 |
| Citation | 74 N.W. 617,54 Neb. 222 |
| Parties | JAMES BELL v. JOHN J. WALKER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Butler county. Tried below before BATES, J. Affirmed.
AFFIRMED.
F. I Foss, Norman Jackson, and Nellie M. Richardson, for plaintiff in error.
Matt Miller and Steele Bros., contra.
It appears from the record that on June 15, 1894, John J. Walker obtained a judgment in the district court of Butler county against W. T. Richardson and C. C. White, in the sum of $ 3,150.85, besides the cost of suit. White filed a transcript of the proceedings and judgment, and a petition in error, in this court for the purpose of procuring a reversal of said judgment, and on June 28, 1894, to secure a stay of execution during the pendency of said error proceeding, he executed and delivered to the clerk of the district court a supersedeas bond, in the sum of $ 6,367.60, with James Bell as surety, conditioned as follows: "Now, therefore, we Charles C. White, as principal, and James Bell, as surety, do hereby undertake to the said John J. Walker, in the sum of $ 6,367.60, that said C. C. White will pay the condemnation money and costs in case said judgment shall be affirmed in whole or in part." The bond was filed with, and approved by, the clerk of the district court. C. C. White died in September, 1895, while said cause was pending in this court, and his wife was duly appointed as executrix of his last will and testament. The error proceeding not having been revived within one year after the appointment of the executrix, on December 1, 1896, the same was by this court, on motion of counsel for John J. Walker, dismissed. Shortly thereafter this suit was instituted by Walker on said supersedeas bond, and a trial to the court, without the assistance of a jury, resulted in a judgment against the defendant, from which he prosecutes error.
The first contention is that the conditions of the bond have not been broken, for the reason that the judgment which it was given to supersede has never been by this court "affirmed in whole or in part;" in other words, that the dismissal of the error proceeding brought to obtain a review of the said judgment recovered by Walker against Richardson and White was not equivalent to an affirmance of said judgment. The precise question, upon a review of the authorities, was passed upon in Dunterman v. Storey, 40 Neb. 447, 58 N.W. 949, where it was decided that the dismissal of an appeal out of this court, without an examination of the merits of the cause, operated as an affirmance of the judgment sought to be reviewed, within the meaning of a supersedeas bond conditioned in the language of the one now before the court. The proposition was ably reasoned by RAGAN, C., in his opinion in that case, and the doctrine therein stated is sound, and sustained by the weight of authority. A discussion of the subject anew at this time would be without profit.
In the brief of defendant below it is said: "The act of God has removed White from this world, taking it out of White's power to prosecute said case to the supreme court to final judgment, and the act of God having taken it out of White's power to do this, his surety is released." No decision has been cited, nor after diligent search has the writer been able to find one, which sustains the above contention of counsel. There are numerous cases in the books to the effect that where the performance of a condition of a bail bond or recognizance given in a criminal prosecution is rendered impossible by the death of the principal before the day of performance, the default is excused. Those decisions are not in point here, for the obvious reason that such bonds or recognizances require the principal to discharge an act of a purely personal character, which no one else can perform for him, and the surety is released where the performance of the condition is prevented by the death of the principal. This supersedeas bond did not require the discharge by the principal therein named of an act merely personal in its nature. The action in which the supersedeas was given was upon a promissory note, and the suit did not abate upon the death of White, one of the judgment debtors, but could have been revived in the name of his executrix, and the error proceeding prosecuted by her. (Code of Civil Procedure, secs. 463-468.)
It is suggested that the surety was discharged by the failure of Walker to have the action revived in the name of White's representative. This argument is without merit. While the former, had he so desired, might have had the action revived the law imposed no duty upon him to secure an...
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