Curten v. Atkinson

• Decision Date: 17 January 1893
• Citation: 54 N.W. 131,36 Neb. 110
• Parties: CURTEN ET AL. v. ATKINSON.
• Court: Nebraska Supreme Court

36 Neb. 110

54 N.W. 131

CURTEN ET AL.

v.ATKINSON.

Supreme Court of Nebraska.

Jan. 17, 1893.

Syllabus by the Court.

1. An undertaking will be strictly construed in favor of sureties, and their liability will not be extended by construction beyond their specific agreement.

2. The term “traffic” in intoxicating drinks, as used in section 15, c. 50, Comp. St., will, in an action on a license bond, be held to mean the sale or furnishing of liquors to third persons, and not the use thereof by the saloon keeper.

3. S., a saloon keeper, while intoxicated in his own saloon, shot and killed the plaintiff's husband. Held, that the drinking of the liquor by S. was not a traffic in intoxicating liquor, within the meaning of the law, or such as will render his sureties liable in an action upon his bond.

4. The second point of the syllabus in this case, 29 Neb. 612, 46 N. W. Rep. 91, overruled.

On rehearing. For former reports, see 29 Neb. 612, 46 N. W. Rep. 91.

POST, J.

1. On a former hearing of this case it was held that the court did not acquire jurisdiction to review the judgment below for the reason that the defendants therein were not all made parties to the proceeding in error. See Curten v. Atkinson, 29 Neb. 612, 46 N. W. Rep. 91. By reference to the record in the case we observe that the petition in error was filed in this court on the 28th day of June, 1889. On the 30th day of August following, the plaintiffs in error's brief was served upon the attorney for the defendant in error. On the 16th day of September, 1889, defendant in error filed herein a paper entitled “An answer to the petition in error.” On the 31st day of October, 1889, defendant in error filed a brief upon the merits of the case, and on the same day it was argued and submitted upon its merits. If the answer to the petition in error presents an issue of law, it was never called to the attention of the court otherwise than by the submission of the case upon its merits. It is also claimed by counsel, and undisputed by the record, that they had no notice whatever of the answer aforesaid previous to the filing of the opinion herein at the January, 1890, term. It may be conceded here that had objection been made at the proper time, on the ground that the parties to the judgment had not all been joined as plaintiffs or defendants in error, such omission would have been held fatal to the prosecution of the petition in error. A rehearing was subsequently allowed upon motion of plaintiffs in error. Since then the identical question has been carefully considered in the case of Consaul v. Sheldon, (Neb.) 52 N. W. Rep. 1104, and the conclusion reached that where parties to a proceeding in error submit the controversy upon its merits they will be held to have waived the objection that there is a defect of parties. We regard that case as decisive of the question now under consideration. There is, however, a more substantial objection to the proposition for which defendant in error contends. A careful examination of the so-called answer satisfies us that it was not intended as an objection to the proceeding on the ground of a defect of parties, but rather upon the ground that the plaintiffs in error, sureties upon the bond, were concluded by the judgment against their principal. We copy the pleading at length as follows: “And now comes the defendant in error, and for answer to the petition in error of said plaintiffs says that said plaintiffs ought not to have their said action thereof against her because they, said plaintiffs, were the sureties upon the license bond of one Patrick H. Shiel, and said Shiel is not joined with said plaintiffs in prosecuting this petition in error. Defendant further says that said bond was and is an obligation on the part of said plaintiffs in error to become responsible for the result of litigation against the said Shiel, to wit, an obligation to pay and become responsible for all damages adjudged against said Shiel under the provisions of chapter 50, St. Neb.; and defendant avers that, said Shiel having without fraud or collusion with defendant acquiesced in and submitted to said judgment against him, said plaintiffs have no standing to maintain their said action and petition in error against her, but that said judgment is conclusive against said plaintiffs, and they ought not to be heard to question said judgment in any manner or form whatever. The defendant, for further answer and defense, avers that the several matters and things specified in plaintiffs' petition in error do not constitute error to the prejudice of the said plaintiffs or their legal rights as sureties upon said bond after judgment thereon against their principal, said Patrick H. Shiel. Wherefore defendant prays that said judgment may be affirmed, and that she may have and recover her costs herein expended.” Had the pleader omitted all after the first sentence it is possible that the pleadings might have been construed as an objection in the nature of a demurrer on the ground of a defect of parties; but, construing all the several parts thereof together, it is obvious that the objection is not on account of the omission of Shiel as a party, but rather to the right of plaintiffs in error to maintain the action; in other words, it involves the merits of the controversy instead of the question of parties. Had defendant in error sought to avail herself of the failure to make Shiel a party to the petition in error, she should have called the attention of the court to the omission before submission of the case on its merits.

2. We come now to a consideration of the controversy upon its merits. Several propositions are discussed by counsel, but they are mainly subsidiary to the one controlling question, viz. does the petition below state a cause of action against the plaintiffs in error? It is in substance alleged therein that Shiel was a licensed saloon keeper, and had given bond as required by law, with plaintiffs in error as sureties; that during the time for which he was licensed to sell liquors said Shiel drank liquor to excess, and finally, during a fit of intoxication in his saloon, shot and killed the plaintiff's husband. By reference to section 6, c. 50, Comp. St., it will be observed that every licensed saloon keeper is required to give a bond, with at least two sufficient sureties, conditioned that he will not violate any of the provisions of the act, and will pay all damages, fines, penalties, and forfeitures which may be adjudged against him under the provisions of the act, and that said bond may be sued on for the use of any person...