Shannon v. Dodge

• Decision Date: 17 January 1893
• Citation: 32 P. 61,18 Colo. 164
• Parties: SHANNON v. DODGE et al.
• Court: Colorado Supreme Court

32 P. 61

18 Colo. 164

SHANNON v. DODGE et al.

Supreme Court of Colorado

January 17, 1893

Error to district court, Lake county.

Suit in equity by Perley Dodge and M. J. Walsh against Margaret A Shannon to enjoin the collection of a judgment. Plaintiffs had decree, and defendant brings error. Reversed.

The following provisions, concerning appeals from county to district courts, from the act of 1885, (pages 158-160,) are considered in the opinion: From section 2: 'In case the judgment be for the payment of money, and against the party appealing, the undertaking shall be in double the amount of the judgment or decree appealed from, conditioned for the prosecution of the appeal, with effect and without delay, and for the payment of all costs, and whatever judgment may be awarded against the party so appealing, on the trial or dismissal of said appeal in the appellate court, and for the payment of the judgment appealed from, in case said appeal shall be dismissed.' From section 5: 'In all cases where the judgment of the county court is affirmed, or judgment is rendered against the appellant, such judgment shall be rendered and entered, as well against the sureties of the appellant upon his undertaking as against the appellant, and execution shall issue on such judgment, as well against such sureties as against the appellant provided, further, that no execution shall issue on such judgment against the sureties until a writ of scire facias shall issue and be served on such sureties, requiring them to show cause before the court, by a day to be named therein not less than five days after the service of said writ, why execution should not be issued against them.'

Syllabus by the Court

1. As a general rule, the dismissal of an appeal to the supreme court operates as an affirmance of the judgment of the trial court; and this rule applies to judgments against sureties on appeal undertakings under the act of 1885, subject to the statutory proviso.

2. The act of 1885, providing for rendering judgment against sureties upon the undertaking on appeal from county to district courts, is not to be regarded as providing another mode of commencing civil actions; but, by executing the undertaking, the sureties are deemed to consent that they shall, under the contingencies specified in the undertaking, be considered parties to the original suit, and liable to judgment for the original cause of action against their principal.

3. In case of successive appeals of the same cause, as from the county court to the district court, and thence to the supreme court, the first set of sureties are not released by the mere taking of a second appeal with new bond and new sureties, in pursuance of statutory authority existing at the time the first appeal was taken.

N. Rollins, for plaintiff in error.

A. J. Sterling and H. P. Krell, for defendants in error.

ELLIOTT J.

Final judgment was rendered in the district court in favor of Dodge and Walsh, plaintiffs below, perpetually enjoining Margaret A. Shannon, defendant below, from collecting a certain judgment against said plaintiffs. The decree was rendered upon overruling the demurrer to the complaint. The facts stated in the complaint, so far as the same are necessary to an understanding of the opinion, are as follows: In April, 1887, Margaret A. Shannon obtained a judgment against Warren Mingus and Anna Mingus in the county court of Lake county for $198.50 and costs. From this judgment an appeal was taken to the district court, Dodge and Walsh becoming sureties on the appeal bond or undertaking. In September, 1887, upon the trial of said appeal, Shannon again succeeded in her suit against Mingus and Mingus, recovering $150 and costs, and thereupon the district court rendered judgment against said Dodge and Walsh jointly with said Mingus and Mingus for the amount so recovered. From the judgment thus rendered in the district court, Mingus and Mingus took an appeal to the supreme court. Dodge and Walsh did not join in the latter appeal. It was a separate appeal by Warren and Anna Mingus, with other sureties upon their appeal bond. The appeal to the supreme court was dismissed in March, 1888.

1. As a general rule, the dismissal of an appeal by the supreme court operates as an affirmance of the judgment of the trial court. Code, §§ 397-399. Shannon, therefore, in the absence of any law to the contrary, was entitled to enforce her judgment against Dodge and Walsh, as well as against Mingus and Mingus, subject only to the conditions of the statute in respect to the issuance of a scire facias. Sess. Laws 1885, p. 160, § 5.

2. Two grounds of objections are urged against the enforcement of the Shannon judgment. In the first place, it is contended that said judgment was illegal as to them because it was rendered without the bringing of any suit upon the undertaking executed by them as sureties. The instrument executed by Dodge and Walsh as sureties conformed in all substantial particulars to the requirements of the statute. Section 2, Act 1885, supra. It is true the undertaking did not in form provide that judgment should be rendered against them as well as against their principals, but it did provide for the payment of whatever...