Duntermann v. Storey

• Decision Date: 02 May 1894
• Citation: 40 Neb. 447,58 N.W. 949
• Parties: DUNTERMANN ET AL. v. STOREY.
• Court: Nebraska Supreme Court

40 Neb. 447

58 N.W. 949

DUNTERMANN ET AL.

v.STOREY.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. The surety in a supersedeas bond, which recites that his principal had filed in the supreme court a transcript and petition in error to obtain the reversal of the judgment which said bond was given to supersede, is estopped, in a suit on such bond, from alleging that no such transcript and petition in error had, at the time of the execution of said supersedeas bond, been in fact filed in the supreme court.

2. For the purpose of enabling his principal to prosecute proceedings in error in the supreme court for the reversal of a judgment rendered against him, a surety executed a supersedeas bond conditioned that he would “pay the condemnation money and costs in case such judgment should be affirmed in whole or in part.” The surety's principal neglected for more than one year after the rendition of the judgment to institute any proceedings whatever in the supreme court for its reversal. Held, that such failure operated as an affirmance of the judgment.

3. A judgment is the final and solemn adjudication and determination of the rights of the parties in and to the subject-matter litigated; and a creditor, on obtaining judgment, is entitled to an immediate execution for the satisfaction thereof, unless such execution is stayed by compliance with the provisions of the statute therefor.

4. The general rule is that the dismissal of an appeal from an appellate court without an examination of the case upon its merits operates as an affirmance of the judgment appealed, or attempted to be appealed, from.

Error to district court, Adams county; Gaslin, Judge.

Action by Joseph Storey against John H. Duntermann and Jacob Bernhart on a supersedeas bond. Judgment for plaintiff, and defendants bring error. Affirmed.Batty, Casto & Dungan, for plaintiffs in error.

Capps & Stevens and W. P. McCreary, for defendant in error.

RAGAN, C.

On the 25th day of November, 1889, Joseph Storey recovered a judgment in the district court of Adams county, Neb., against John H. Duntermann. On the 9th day of January, 1890, Duntermann as principal, and Jacob Bernhart as surety, executed and filed in the office of the clerk of the district court a supersedeas bond in words and figures as follows: “Whereas, on the ______ day of ______, 1890, John Duntermann has filed in the supreme court his transcript and petition in error to obtain a reversal of a judgment rendered in the district court of Adams county on the 25th day of November, 1889, in favor of Joseph Storey, and against John H. Duntermann, for the sum of $621.36, and for costs of suit pending therein, wherein said Joseph Storey was plaintiff and John H. Duntermann was defendant: Now, therefore, we, John H. Duntermann as principal, and Jacob Bernhart as surety, do hereby undertake to said Joseph Storey, in the sum of $1,250, that said John H. Duntermann will pay the condemnation money and costs in case said judgment shall be affirmed in whole or in part.” The bond was approved by the clerk of the district court on the day of its execution. This suit was brought by Storey against Duntermann and Bernhart on said bond. Storey, in his petition, alleged the recovery of the judgment against Duntermann; the execution, delivery, and approval of the aforesaid supersedeas bond by Duntermann and Bernhart; its filing with, and aproval by, the clerk of the district court of Adams county. The petitition further alleged that more than a year had elapsed since the making of the last final order and judgment in the case of Storey against Duntermann in the district court of Adams county; that no bill of exceptions had ever been settled in said case, “and that no proceedings in error or appeal are now pending in the supreme court of Nebraska from the said judgment, whereby the same has been wholly affirmed, unreversed, and unmodified, and the conditions of said obligation have become absolute and payable;” that Duntermann was wholly insolvent, and had no property out of which the money due on said judgment could be made. Duntermann did not appear in the case. Bernhart filed an answer in which he admitted the recovery of the judgment by Storey against Duntermann, the execution, delivery, and approval of the supersedeas bond, and that more than a year had elapsed since the making of the last final order and judgment in the case of Storey against Duntermann, and that no bill of exceptions had ever been settled in the case, and admitted that no proceedings on appeal or error were pending in the supreme court from said judgment. Bernhart also in his answer said: “Denies that the same [the judgment] has been wholly affirmed, unreversed, and unmodified, and denies that the conditions of said obligation have become absolute and payable.” The eighth paragraph of Bernhart's answer was as follows: “As a further answer, this defendant alleges the fact to be that no appeal was ever initiated in the case of Storey against Duntermann, that no petition in error was ever filed in the supreme court of Nebraska, and that no proceedings whatever, either in error or on appeal, were had in said cause of Storey v. Duntermann from the final order and judgment of the district court of Adams county therein.” There was the further suggestion in Bernhart's answer that the petition of Storey did not state a cause of action. To this answer Storey filed no reply, but submitted a motion for judgment on the pleadings. The district court, in response to this motion, rendered a judgment for Storey for the amount of his judgment against Duntermann, with interest and costs, and Bernhart brings the case here on error.

1. Does Storey's petition state a cause of action? It must be confessed that the petition is not a model by any means, but we think it states a cause of action.

2. The allegation in Bernhart's answer that, as a matter of fact, no proceedings to review, on error or appeal, the judgment rendered in favor of Storey, were ever instituted in the supreme court, not being denied by Storey in a reply, must of course be taken as true; but Bernhart having solemnly asserted in the supersedeas bond which he executed and filed with the clerk that Duntermann had, prior to that time, filed in this court a transcript and petition in error to obtain the reversal of the Storey judgment, is now estopped from disputing the truth of that statement. In Hundley v. Filbert, 73 Mo. 34, it was held that “the obligors in a delivery bond which recites a levy of execution are estopped, in an action on the bond, from pleading that there was no levy.” In Gudtner v. Kilpatrick, 14 Neb. 347, 15 N. W. 708, a suit was brought on an undertaking entered into for the purpose of appealing from the judgment of a justice of the peace, and it was there ruled that the defendants were estopped to deny that an appeal had been taken in the case, in contradiction of their undertaking executed in conformity to the statute for the purpose of perfecting an appeal, although no appeal lay from the judgment rendered. See, also, Adams v. Thompson, 18 Neb. 541, 26 N. W. 316;Love v. Rockwell, 1 Wis. 382;Pieper v. Peers (Cal.) 32 Pac. 700. The case, then, stands precisely as if Duntermann had filed a transcript of the Storey judgment, and a petition in error in this court;...