First State Bank of Mountain Lake v. C. E. Stevens Land Co.

• Decision Date: 25 October 1912
• Citation: 119 Minn. 209,137 N.W. 1101
• Parties: FIRST STATE BANK OF MOUNTAIN LAKE v. C. E. STEVENS LAND CO. et al.
• Court: Minnesota Supreme Court

119 Minn. 209
137 N.W. 1101

FIRST STATE BANK OF MOUNTAIN LAKE
v.
C. E. STEVENS LAND CO. et al.

Supreme Court of Minnesota.

Oct. 25, 1912.

Appeal from District Court, Cottonwood County; L. S. Nelson, Judge.

Action by the First State Bank of Mountain Lake against the C. E. Stevens Land Company and others. From a judgment for defendant Title Guaranty & Surety Company, plaintiff appeals. Reversed, and new trial granted.

Syllabus by the Court

A stipulation for an affirmance of an order or judgment appealed from, made in good faith, does not release the surety on the appeal bond.

In an action findings were made, directing judgment to be entered in favor of the plaintiff therein, the stay allowed had expired, and plaintiff threatened to enter judgment, whereupon the defendant promised that, if plaintiff would refrain from entering judgment in the intended appeal, defendant would give a satisfactory bond to pay all judgments and costs that might be entered in the action. If it be proven that such an agreement was made and kept by plaintiff, and pursuant thereto an appeal bond was executed, the bond is a valid common-law obligation, and binding in all its terms.

In order to determine the prejudicial effect of errors properly assigned, the whole record may be examined; and if, in the light thereof, the findings appear indefinite and uncertain on a vital issue, the judgment should not be allowed to stand.

The bond in this case, considered as a common-law obligation, is not void under the statute of frauds for failure to state the consideration, namely, the alleged agreement, in full.

An order sustaining a demurrer to a complaint is of no effect as determining the law of the case, after the service of an amended complaint.

[137 N.W. 1102]

Wilson Borst and J. G. Redding, both of Windom, for appellant.

James E. Markham and Benjamin Calmenson, both of St. Paul, for respondent.

HOLT, J.

The action is to recover on an appeal bond. Judgment was rendered for the defendant, the surety, and plaintiff appeals therefrom.

Plaintiff's assignor, one J. C. Heibert, in an action pending in the district court against the C. E. Stevens Land Company, was successful, and findings directing judgment to be entered in his favor for $5,050 were duly made and filed September 22, 1904. A stay of proceedings for 20 days was granted the next day, but none other. A motion for a new trial was denied November 26th, and December 5, 1904, a notice of appeal was served. On that day the attorney for the Land Company delivered to the attorney for said Heibert the bond in suit for $6,000, executed by said Land Company, as principal, and this respondent as surety. After stating that an appeal from the order denying a new trial had been taken, the bond reads: ‘Now, therefore, if the said the C. E. Stevens Land Company aforesaid shall pay all costs that may be awarded against it and all damages sustained by the respondent in consequence of said appeal, and abide and satisfy the judgment or order which the appellate court may give therein, and pay all judgments and costs which may be rendered against it in said action, then this obligation shall be void; otherwise, to remain in full force.’ The order appealed from was affirmed, and upon remittitur to the district court judgment was entered upon the findings. Plaintiff now seeks to recover of the defendant, the surety in the bond, the balance unpaid on the judgment.

[1] The surety pleaded, and the court found, that the affirmance of the order appealed from by the C. E. Stevens Land Company in this court was pursuant to a stipulation between the parties. Plaintiff herein saved exception to the reception of the stipulation in evidence, and also assails the finding upon that issue as immaterial. The defendant contends that this finding is not only material, but conclusive that no liability exists on the bond...