Palmer v. Caywood
| Decision Date | 02 April 1902 |
| Docket Number | 11,573 |
| Citation | 89 N.W. 1034,64 Neb. 372 |
| Parties | JOSHUA PALMER ET AL. v. JAMES S. CAYWOOD |
| Court | Nebraska Supreme Court |
ERROR from the district court for Saline county. Tried below before STUBBS, J. Affirmed.
AFFIRMED.
Joshua Palmer, for plaintiffs in error.
J. D Pope, contra.
The plaintiff below, defendant in error, instituted an action in the district court for Saline county against the defendants plaintiffs in error, on their liability as sureties on an undertaking executed in favor of plaintiff's assignor who had obtained a money judgment against the principal in the undertaking, which it was sought to have reviewed on error in the supreme court, the undertaking being executed under and by virtue of the provisions of section 588 of the Code of Civil Procedure, for the purpose of staying the execution of the judgment pending the error proceeding prosecuted to obtain a reversal thereof. The petition is in the ordinary form, and, in substance, alleges the recovery of the judgment superseded by the undertaking sued on; the execution, delivery and approval of the supersedeas bond; the removal of the cause to the supreme court on error, and the affirmance therein of the judgment recovered in the lower court; the issuance and filing in the district court of the mandate of the supreme court directing the enforcement of the judgment as affirmed; the assignment of the judgment to the plaintiff in the action, and that no part of the judgment, or the costs adjudged against him, had been paid by the judgment debtor, his heirs or assigns, or any other person, nor by the said defendants, who were signers of the supersedeas bond; followed by a statement of the amount due, and prayer for judgment. A demurrer was interposed, which, on consideration, was overruled, and leave given to answer, which was done. We are asked to review the ruling of the trial court on the demurrer, but that seems unnecessary, in view of the defendants' action in answering to the petition, and thus waiving the error, if any there be, in the ruling on the demurrer. Buck v. Reed, 27 Neb. 67, 42 N.W. 894. The answer admitted the main facts alleged in the petition, and as a defense, pleaded that, pending the review of the cause in which the supersedeas bond was given in the supreme court, the judgment debtor died seized of personal and real property ample to pay all his debts, and that such judgment had been allowed as a proper claim against the estate of the deceased; that the order of allowance was in full force, and said judgment was a valid claim against the estate, which was amply sufficient for its payment. It is also alleged that the plaintiff had, after the death of the judgment debtor, intermarried with the widow of the deceased, and that the plaintiff, conspiring with the assignor of the judgment, obtained an assignment thereof for the fraudulent purpose of exempting the estate of the judgment debtor from the payment of the judgment, and to enforce collection of the same from the defendants, as sureties on the supersedeas bond, in violation of their rights. The portion of the answer relating to the filing of the judgment as a claim against the estate, and its ability to pay the obligation, was, on motion, stricken from the answer, after which a reply consisting of a general denial was filed; and on the issues thus raised the action proceeded to trial and a judgment adverse to the defendants, from which they bring the cause here for review by proceeding in error.
The only question presented by counsel for the sureties relates to the action by the trial court in striking from the answer that portion thereof heretofore referred to, and its refusal to permit the introduction of any evidence tending to prove that the estate was solvent, and to show the ability of the plaintiff to obtain satisfaction of his judgment therefrom and without recourse to the sureties on the supersedeas bond. Counsel say: "The position that we take is that under ordinary circumstances the creditor can elect whether he will pursue the debtor or his bondsmen, but where the creditor died during the litigation of the subject-matter, and the judgment having been allowed by the county court as a claim against the debtor's estate, and when said estate is solvent, he must pursue the same course as other creditors, and get his claim from the estate, and not be allowed to pursue and distress the securities on debtor's bond." The rule is, as we understand the authorities, that the sureties' liability on the affirmance of the judgment is absolute and unconditional,--as much so as the principal debtors,--and...
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