Ray v. Ray

• Decision Date: 01 January 1878
• Citation: 1 Idaho 705
• Parties: Henry T. Ray And Ferdinand Dangel, Respondents, v. Margaret Ray, D. Levy Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 705

Henry T. Ray And Ferdinand Dangel, Respondents, v. Margaret Ray, D. Levy Et Al., Appellants.

Supreme Court of Idaho

January 1, 1878

RECORD ON APPEAL.-On appeal from a judgment, without a statement or bill of exceptions, nothing belongs to the record except the judgment-roll, and no question outside of the record can be considered by this court.

DAMAGES.-The word "damages" as used in the United States statutes, concerning supersedeas bonds on writ of error and appeal to the supreme court of the United States, includes the loss which the defendant in error or appellee may sustain by reason of not, having the judgment appealed from paid or executed.

PLEADINGS AND PROOF ON SUPERSEDEAS BONDS.-In an action upon a supersedeas bond in a case wherein the proceedings have been stayed by the bond, it is not necessary to allege or prove that the action in which the bond was given, was an appealable one.

APPEAL from the Second Judicial District, Ada County.

A. Heed and A. Smith, for the Appellants. Brumback & Cahalan, for the Respondents.

PRICKETT J.,

delivered the opinion.

HOLLISTER C. J., and CLARK, J., concurred.

This is an action upon a supersedeas bond given by the defendant, Margaret Ray, as principal, and the other defendants as sureties, upon an appeal from a judgment of this court to the supreme court of the United States.

The complaint alleges in effect, that on the fifth day of June 1873, the defendant, Margaret Ray, commenced an action in the district court of Ada county, against the plaintiffs in this action, in which a decree was rendered in her favor; that the plaintiffs in this action appealed from such decree to this court, which reversed the decree of the court below, and directed the cause to be remanded with instructions to the district court to dismiss the bill of complaint. That upon an appeal from the last-mentioned judgment, by said Margaret Ray, to the supreme court of the United States, the bond in suit, in the sum of two thousand dollars, conditioned to pay all damages and costs, was given; that on the thirty-first day of March, 1874, the bond was approved by the chief justice of this court, and was filed in the cause; that all proceedings upon the judgment were thereupon stayed until the fourteenth day of February, 1876, when, after a dismissal of the appeal by the supreme court of the United States, the district court again became possessed of the case by a remittitur from the supreme court of the territory.

That on the twenty-second day of March, 1876, final judgment in that action was rendered in the district court, dismissing the bill, and for costs amounting to four hundred and eighty-nine dollars and eighty-seven cents, which remained wholly due

and unpaid, and for which sum judgment was demanded against the makers of the supersedeas bond. The summons was served on the defendant, Levy, only, and he appeared and filed a demurrer to the complaint on the grounds "that it does not state facts sufficient to constitute a cause of action, and that it is ambiguous, unintelligible, and uncertain." Afterward, said Levy answered the complaint, admitting the execution of the obligation sued upon, and denying that it was executed for the purpose of staying proceedings in the suit in which it was given, and upon information and belief denying that such proceedings were stayed, or that said bond operated as a supersedeas, and alleging that Margaret Ray, the principal in said bond named, was solvent, and was the owner of a large amount of property, real and personal, in the county, and that no demand had been made upon her to pay the judgment.

On the thirtieth day of December, 1876, a jury trial being waived the cause was tried by the court, and a judgment rendered against the defendants for the sum of four hundred and eighty-nine dollars and eighty-seven...