Callbreath v. Coyne

• Decision Date: 06 June 1910
• Citation: 109 P. 428,48 Colo. 199
• Parties: CALLBREATH et al. v. COYNE.
• Court: Colorado Supreme Court

109 P. 428

48 Colo. 199

CALLBREATH et al. v. COYNE.

Supreme Court of Colorado

June 6, 1910

Appeal from District Court, Summit County; Charles Cavender, Judge.

Action by V. J. Coyne against James F. Callbreath, Jr., and others. From a judgment for plaintiff, defendant James F. Callbreath appeals. Affirmed.

Charles F. Carnine and James F. Callbreath, Jr., for appellant.

Frank M. Goddard, for appellee.

GABBERT J.

This is an appeal from a judgment rendered in an action by appellee as plaintiff, against appellant and others, as defendants, on an appeal bond executed by the Puzzle Leasing Company and others, as principals, and the appellant, as surety, to secure an appeal to this court from a judgment rendered in favor of the appellee and against the principals in the appeal bond by the county court of Summit county. Thereafter such proceedings were had in this court that the appeal was dismissed for failure to prosecute, and the judgment of the county court affirmed. Thereupon suit was brought upon the appeal bond, and judgment rendered in favor of the plaintiff against the principals and surety thereon. From this judgment defendant Callbreath has appealed.

The condition of the bond is as follows: 'Now, the condition of the above obligation is such, that if the said the Puzzle Leasing Company, E. J. Hoyle, M. W. Hoyle, and Josephine Kirk shall duly prosecute the said appeal, and shall pay and satisfy the judgment, costs, interest, and damages in case the judgment shall be affirmed by the Supreme Court, whether judgment shall be given by the Supreme Court or by the said county court, then this obligation to be null and void otherwise to remain in full force and virtue.' Appellant contends that he is not liable on the bond because the appeal for which it was given was not duly prosecuted; that is, he contends that, because his principals did not prosecute the appeal and for this reason it was dismissed, he is relieved from all liability on the bond. It is not necessary to go into an extended consideration of this question. It has been determined in this jurisdiction that the liability of a surety on an appeal bond is fixed by the dismissal of the appeal. Creswell v. Herr, 9 Colo.App. 185, 48 P. 155; Mueller v. Kelly, 8 Colo.App. 527, 47 P. 72; Swofford Bros. Dry Goods Co. v. Livingston, 16 Colo.App. 257, 65 P. 413; Thalheimer v Crow, 13 Colo. 397, 22 P. 779.

The effect of an appeal bond is to stay proceedings upon the judgment until the appeal is disposed of. The bond in question was conditioned that the appeal should be duly prosecuted. It would certainly be a novel proposition that a surety could escape liability upon an appeal bond where his principal, the judgment debtor, by virtue thereof, had secured the benefit of a stay which prevented the judgment creditor from enforcing his judgment, and may have jeopardized its collection by pleading in bar of an action on the bond the failure of his principal to comply with the very condition upon which he procured a stay of the enforcement of the judgment against him. The bond recites that the judgment appealed from was obtained on the 4th day of September, 1906. The record of the judgment recites, in...