McPherson v. Commercial Nat. Bank

• Decision Date: 17 April 1901
• Citation: 61 Neb. 695,85 N.W. 895
• Parties: MCPHERSON ET AL. v. COMMERCIAL NAT. BANK.
• Court: Nebraska Supreme Court

61 Neb. 695

85 N.W. 895

MCPHERSON ET AL.

v.COMMERCIAL NAT. BANK.

Supreme Court of Nebraska.

April 17, 1901.

Syllabus by the Court.

1. An undertaking for costs, meeting all the requirements of the statute under which it was given, is valid and enforceable, although no obligee is named therein.

2. There is no substantial difference between “a bond for costs” and “an undertaking for costs.” Each expression is the recognized equivalent of the other.

3. Where the clerk of a state court for a certain county has possession of the records of the territorial court for the same county, it will be presumed, both courts being of the same description, that his possession is rightful.

4. A party cannot justly complain of an adverse ruling upon an objection to the introduction of evidence which is so indefinite as to be unintelligible.

Error to district court, Douglas county; Dickinson, Judge.

Action by the Commercial National Bank against Thomas B. McPherson and others. Judgment for plaintiff, and defendants bring error. Affirmed.Byron G. Burbank, for plaintiffs in error.

Richard S. Horton, for defendant in error.

SULLIVAN, J.

This cause, after having been tried before a justice of the peace, was removed by appeal to the district court of Douglas county, where the plaintiff, the Commercial National Bank of Ogden, Utah, recovered a judgment against the defendant Thomas B. McPherson for the sum of $201.55. The material facts, as found by the trial judge, are as follows: “(1) That prior to November 30, 1894, T. H. Ensor and the Ensor Remedy Company were plaintiffs in actions pending in the district court of the Fourth judicial district of Utah; that on the 11th day of November, 1894, the defendants in said suits requested plaintiffs to furnish security for costs in each of said actions. (2) That on the 30th day of November, 1894, the defendant Thomas B. McPherson wrote to J. L. Loar, the attorney for plaintiffs in said suits, requesting him to show said letter to the Commercial National Bank, plaintiff herein, and asked them to furnish bond for costs, and stating that defendant would hold them harmless by reason of their undertaking. (3) That said attorney did show said letter to the plaintiff, and the plaintiff, relying on said letter, procured T. D. Ryan and R. T. Hume to sign an undertaking for costs in each of said actions.(4) That each of said undertakings was in words and figures following: ‘Whereas, the defendant in the above-entitled action filed his notice in the district court of the Fourth judicial district, in the territory of Utah and county of Weber, notifying and requiring the plaintiff to furnish bond for costs in the above-entitled action: Now, therefore, in consideration of the premises, we, the undersigned, residents and freeholders of the said territory of Utah and county of Weber, do hereby jointly and severally undertake, in the sum of three hundred dollars ($300.00), to the effect that the plaintiff will pay such costs and charges as may be awarded against the plaintiff by said judgment, not exceeding said amount, in which amount we acknowledge ourselves jointly and severally bound. Thomas H. Ensor, by James L. Loar, His Atty. T. D. Ryan. R. T. Hume.’ (5) That each of said suits was prosecuted in said district court to final judgment, and judgment rendered against the plaintiff for costs,--in case of Thomas H. Ensor v. E. F. Bratz, for the sum of $99.65; in case of Ensor Remedy Co. v. James E. Horrocks, the sum of $65.85. (6) That the undertakings for costs furnished by the plaintiff were each in conformity to, and in compliance with, the law of Utah, and the signers thereof were, under the law of Utah, legally liable thereon. (7) That the signers of said undertakings paid and satisfied said judgments for costs, and that the plaintiff herein furnished the money with which to make such payments, relying upon the letter of defendant that he would save them harmless in so doing, and that no part of the same had been repaid to plaintiff by defendant, or any person for him.”

The first argument advanced by counsel for McPherson is that the instruments signed by Ryan and Hume were not valid obligations to answer for costs, and that the judgments rendered by the district court of the Fourth judicial district of the territory of Utah were paid voluntarily, and not under legal compulsion. It is true that there is no obligee named in either of the undertakings, but the statute of Utah does not require that there should be. They were binding engagements, because they conformed to the requirements of...