Creswell v. Herr

• Decision Date: 08 February 1897
• Parties: CRESWELL v. HERR. [1]
• Court: Colorado Court of Appeals

48 P. 155

9 Colo.App. 185

CRESWELL v. HERR. ^[1]

Court of Appeals of Colorado

February 8, 1897

Appeal from district court, Arapahoe county.

Action by John Creswell against Willis B. Herr to recover on an appeal bond. From a judgment of nonsuit, plaintiff appeals. Reversed.

C.J Blakeney, for appellant.

Willis B. Herr (Chas. G. Clement, of counsel), pro se.

BISSELL J.

Judgment of nonsuit was entered against Creswell in the district court, and therefrom he prosecutes this appeal. He brought his action against Herr and Thomas, and alleged the recovery of a judgment in his favor against Phelps & Pennock, and the prosecution of an appeal by those parties to the district court from the county court, in which it was rendered in July, 1892. He set up in haec verba the bond which those parties gave on this appeal. It was in the form prescribed by the statute, recited the recovery of a judgment against Phelps for a sum named, and an appeal by Phelps to the district court, and as a condition that he should prosecute the appeal to effect, and pay whatever costs or judgment might be awarded against him on trial or dismissal. The plaintiff then set up the dismissal of the appeal, in May 1893; the filing of a transcript of the judgment; the suing out of an execution; and its partial satisfaction. The amount unpaid was stated, a demand for payment, and a prayer for judgment. The defendants demurred to the complaint, on the general theory that, according to its allegations, the judgment appealed from appeared to be joint, while the bond was given to support a several appeal prosecuted by Phelps. The demurrer was overruled, because the bond recited a several appeal by Phelps, and, barring any other proof, would permit a recovery. The defendants answered, admitted the execution of the instrument, but denied the taking of the appeal or the approval of the bond and controverted the dismissal. The defendants also denied the breach alleged, and prayed that it be dismissed. When the case came on for trial, and the plaintiff undertook to prove his breach, and produced the clerk of the county court, with the execution and the return, together with other proofs showing the nonpayment of a part of the judgment, the examination of Dunlevy, who was clerk of the county court, in a measure, although not completely, exhibited the fact that the bond was given by Phelps to prosecute an appeal from a judgment which had been entered against himself and Pennock in the county court. Of course, this fact was well known to the attorneys, but it had been theretofore measurably excluded from the record. Thereupon the defendants alleged surprise, and asked a continuance, which was granted, and they filed another answer, wherein they attempted to set up the suit against Phelps & Pennock; the character of the judgment as a joint one, as contradistinguished from a several judgment against each; and a joint appeal prayed by both, rather than a several appeal prayed by each. The defendants conceded that Phelps, as principal, and the defendant, as surety, gave the bond for the purpose of taking an appeal to the district court, and an attempt to prosecute it. The defendants also averred that the appeal was dismissed in the district court, because of the joint prayer and the giving of an individual undertaking and the attempt to prosecute an individual appeal by Phelps. The plaintiff moved for judgment on the pleadings, which was denied, and the facts which have been before stated appeared in evidence. Of course, it was useless to attempt to conceal the situation, and the plaintiff's attorney admitted the general facts as they are outlined here, but insisted they were no defense to the bond.

On this proposition of law we quite agree with the appellant. It has of course, been settled in this state that an appeal cannot be taken by one of several defendants, and successfully prosecuted, so long as the order...