Gill v. Sullivan

• Decision Date: 14 December 1883
• Citation: 17 N.W. 758,62 Iowa 529
• Parties: GILL v. SULLIVAN ET AL.; MULDOWNEY v. THE SAME. WALSH v. THE SAME
• Court: Iowa Supreme Court

17 N.W. 758

62 Iowa 529

GILL v. SULLIVAN ET AL.;

MULDOWNEY v. THE SAME.

WALSH v. THE SAME

Supreme Court of Iowa, Des Moines

December 14, 1883

Appeal from Iowa District Court.

THESE are actions upon a supersedeas bond given in actions appealed to this court. A demurrer to the petition in each case was sustained, and judgment thereon was rendered for defendants. Plaintiffs appeal. The cases, involving the same facts, were submitted upon one abstract.

AFFIRMED.

F. P Murphy, for appellants.

Rumple & Lake, for appellees.

OPINION

BECK, J.

I.

In an action in the circuit court, the plaintiffs were held to be the owners of certain real estate, and from the decision the defendants appealed to this court, and filed in the respective actions the supersedeas bonds upon which these suits are brought. The judgments were affirmed in this court. These facts are alleged in the petition, which claims to recover for the rents and profits of the real estate, and damages for injury done thereto. The bonds are conditioned that "appellants shall pay to the appellees all costs and damages that shall be adjudged against appellants on said appeal, and shall also satisfy and perform the said judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render, or order to be rendered by the circuit court." The demurrers to the petitions, were sustained by the court, upon the ground that the defendants are not, by the terms of the bonds, liable for rents of and injury to the property.

II. We think the demurrers were rightly sustained. The damages which plaintiffs claim in these actions do not arise upon a breach of any condition of the bonds creating liabilities for rents and profits and for injury to the lands. Under the statute, the bonds, in order to supersede the judgments should have contained such condition. Code, § 3186. By its omission, the bonds did not lawfully operate to supersede the judgments. The contracts of the parties were expressed in the bonds, and they cannot be extended on the ground that they were mistakenly regarded as superseding the judgments.

III. The section of the Code above cited prescribes that a supersedeas bond shall be "to the effect that the appellant shall pay to the appellee all costs and damages that shall be adjudged against the appellant on the appeal also that he shall satisfy and perform the judgment or order...