Freas v. Engelbrecht

• Decision Date: 01 April 1877
• Citation: 3 Colo. 377
• Parties: FREAS et al. v. ENGELBRECHT et al.
• Court: Colorado Supreme Court

3 Colo. 377

FREAS et al. v. ENGELBRECHT et al.

Supreme Court of Colorado

April, 1877

Error to Probate Court of Gilpin County.

ACTION of debt on an appeal bond. The defendants in error obtained judgment in the probate court of Gilpin county against Freas one of the plaintiffs in error, for the sum of $301.75. Freas appealed to the supreme court and gave bond with Thomas and Wentworth as his sureties. The appeal was dismissed in the supreme court by defendants in error, for want of prosecution. The defendants in error thereupon instituted suit upon the appeal bond in the probate court of Gilpin county. The declaration sets up a joint and several bond conditioned in the usual form, that Freas should prosecute his appeal with effect, and should pay the amount of the judgment together with interest and costs in case the judgment should be affirmed in the supreme court, etc.; the declaration further avers the dismissal of the appeal, and the breach assigned is that Freas had 'not paid the amount of said judgment in said writing obligatory mentioned,' whereby an action had accrued, etc. The defendants below filed a general demurrer to the declaration the demurrer was overruled and thereupon Freas and Thomas (Wentworth not having been served) severally pleaded over to the merits; Freas interposing seven pleas and Thomas eight demurrers were filed and sustained to some of these pleas and overruled as to others. These pleas are all commented on in the opinion of the court, and further reference to them in this place is unnecessary. A jury was waived and the cause tried by the court. It also appears that the parties agreed that the amount due upon the original judgment was $291.62. The court gave judgment in that amount as damages, together with costs against Freas and Thomas, to reverse which judgment, this writ of error was sued out.

Mr. L. C. ROCKWELL, for plaintiffs in error.

Mr. ALVIN MARSH, for defendants in error.

WELLS J.

1. Having demurred generally below, the plaintiff in error was, it seems, precluded from moving in arrest of judgment for defects in the declaration. Freeman v. Camden, 7 Mo. 298; 2 Tidd, 740*, 918*; Nouse v. The County of Peoria, 2 Gilm. 106; Graham's Prac. 641.

And having pleaded matter of fact after the overruling of his demurrer, he is precluded now from assigning error upon that decision. We have searched in vain for authority which will relieve from this absurd dilemma. The declaration, whatever it may contain, is, so far as any inquisition of error is concerned, a sealed book. The plaintiff in error, by the inconsiderate course pursued in pleading in the court below, has rendered it impossible for us to entertain the interesting questions which were principally discussed at the bar.

2. The second plea of the defendant Freas was probably not obnoxious to general demurrer. He was certainly at liberty to traverse the allegations of the narr., touching the proceedings in the supreme court; and this we suppose to be the effect of the plea in question; there was error, therefore, in sustaining the demurrer to this plea.

But the only effect of allowing the plea would have been to require the production of the record; and this was produced at the trial. It seems to us, therefore, that we ought not to reverse the judgment for the error in sustaining the demurrer.

The third plea set up matter of law only, and pressents the same issue which had before been determined on demurrer to the declaration. The demurrer to this plea was, therefore, well sustained.

The fourth plea amounts to nul tiel record, to the judgment of the supreme court averred in the declaration. The effect of the judgment upon the demurrer to this plea is dependent upon the same considerations before adverted to in the case of the second plea.

The fifth plea is, of course, bad. The defendant Thomas pleaded separately the same pleas as his co-defendant, in the same order and form: except that his third plea sets forth his character of surety. The result as to the issues of law joined upon these pleas is the same as in the case of the pleas pleaded by the defendant Freas.

The additional plea of nul tiel record pleaded by this defendant was also bad. Arnott v. Friel, 50 Ill. 175. The result upon the whole record is that in determining these issues of law no material error which is open to examination was committed.

The issues of fact which were submitted were those arising upon the first plea, non est factum; the sixth, performavit omnia; the seventh, which is an immaterial issue, and the eighth plea of the defendant Thomas, which avers general performance by his co-defendant. The evidence produced by the plaintiffs was entirely sufficient to maintain the affirmative, which rested upon them. They produced the identical bond which they had averred in the declaration, and a transcript from the records of this court, which exhibited that Freas' appeal had been dismissed for default of prosecution, as the declaration alleged. The objections interposed to this evidence were properly overruled. The plaintiffs were entitled to maintain the issue which defendants had joined with them; the substantial insufficiency of the mattters involved in these issues, to charge the defendants, was matter of objection at another stage of the cause. Greathouse v. Robinson, 3 Scam. 9. Having established what they had alleged, however insufficient, the plaintiffs were entitled to have the issues of fact resolved in their favor. Safford v. Stevens, 2 Wend. 158; Harley v. Wheeler, 4 Jones, 162. The remaining question, which is presented by the assignment of errors, regards the asessment of the plaintiffs' damages. These were estimated in the court below at the amount remaining unpaid of the judgment appealed from. It is argued that inasmuch as by the declaration it appears that the appeal of the defendant Freas was dismissed and the judgment from which the appeal was taken was never in terms affirmed in this court, the defendants are in no event liable for more than nominal damages.

The question presented, therefore, is whether the dismissal of an appeal from the district court to the supreme court is under the Territorial statute (R. S., ch. LXX, s 41) equivalent in its effect to the affirmance of the judgment. An affirmative response to this question was given in the case of Hax v. Leis, 1 Col. 187; but an examination of the report will make it apparent that the appeal in question in that case had been dismissed for the failure of appellant to give bond within the time limited by the order allowing the appeal; the effect of the dismissal for that cause was the question there presented, and in so far as that question differs from the one arising upon the present record, the remarks of the learned justice, who gave the opinion, were entirely extra-judicial, and neither conclude us nor excuse from an independent examination of the question.

The appellant, on executing the appeal bond and procuring his sureties to unite therein with him, must be presumed in every case to contemplate a compliance with the statute, and no more; except for the requirement of the statute, it may safely be assumed, he would not have given bond at all. The true question, therefore, is, what was the legislative intent in this requirement. The 41st section of the Practice Act (R. S. chap. LXX), after allowing the appeal, provides that within a day to be limited, etc., the appellant shall give bond conditioned 'for the payment of the judgment, costs, interest and damages in case the judgment shall be affirmed, and also for the due prosecution of the appeal.' The arrangement of the members of this sentence and the phraseology of the second clause are worthy of remark. Two things are required of the appellant in order to save the bond: (1) To pay the judgment in case it shall be affirmed. (2) To make due prosecution of the appeal.

Looking to the letter of the statute alone, it seems impossible to say that affirmation of the judgment was in contemplation of the legislature, as incidental to a discontinuance of the appeal; for, if so, why should the second condition have been added; according to this interpretation, appellee was protected at every point by the first condition; and the second is meaningless. An interpretation which, without any imperative necessity, reduces one of two harmonious clauses of the statute to empty verbiage, ought not to be adopted.

Looking beyond the statute, all the analogies of the law are opposed to the interpretation for which the defendants in error contend.

The appeal is merely cumulative to the common law process of writ of error. The statute which gives the former, does not take away the latter. The party may in the first instance, as will be confessed, adopt either, at his pleasure.

The appeal, if that method be pursued, performs the office of the writ of error, has the same effect, and is governed by the same rule in every respect, save in the single instance that an appeal, when perfected, stays by its own force the execution of the judgment, while upon writ of error, supersedeas is awarded only upon the order of some justice of this court. And so it was under the Territorial law.

Now if the dismissal of the appeal for want of prosecution operates to affirm the judgment, and so preclude the suing out of a writ of error, voluntary discontinuance of the appeal must be attended by the same consequences. And if the voluntary or negligent omission to prosecute an appeal has the effect attributed to it, it will follow that the abatement of the first writ of error, where the party adopts this instead of the statutory remedy, should bar any second writ of error. But this is not the law. Tidd's Prac. 1154; Birch v. Triste, 8 East, ...