Simpson v. Prather

By the Court, McArthur, J.:

The first error assigned is that the court erred in overruling the demurrer. As has been stated, the demurrer is a general one, and the rule is well settled that if, from inspection of the pleading, the whole, or any part thereof, can be resolved into a cause of action, the demurrer must be overruled. (People v. Mayer, 21 Barb. 240 .) The principal objection urged to the complaint is, that it does not show that the judgment was affirmed, but simply that it was dismissed. The respondent claims that the dismissal of the appeal operated as an affirmance of the judgment. As that fact is supplemented by the allegation of the further facts that the time for tailing the appeal had fully elapsed and that the same had been abandoned, we are of opinion that the dismissal operated as an affirmance of the judgment of the court below. In this view we are supported by McConnel v. Swailes ( 2 Scam. 572 ), in which it was held that the dismissal of an appeal is equivalent to a regular technical affirmance of the judgment appealed from so as to entitle the party to claim a forfeiture of the bond and have his action therefor. Sutherland v. Phelps ( 22 Ill. 91 ) cites and approves McConnel v. Swailes. Harrison v. Bank of Kentucky (3 J. J. M. 375) is to the same effect, as also is Karth v. Light ( 15 Cal. 325 ). These cases lay down a doctrine antagonistic to that laid down in Drummond v. Husson ( 14 N. Y. 60 ), the case relied on by appellant’s counsel. We cannot give our assent to the application of the New York rule, but will follow the rule in the other cases cited as being, in our opinion, the correct one. >

*89 The second assignment of error is that the court erred in granting respondent’s motion for judgment on the pleadings: The answer was fatally defective. It tendered no issue. It admits the execution of the undertaking, admits that the appeal was dismissed on motion, and that more than six months had elapsed since the appeal was taken from the Justice’s Court. The only denial is of an indebtedness in the sum of one hundred and eight dollars—a negative pregnant. It admits all the facts upon which the indebtedness arose, but denies- only the legal conclusion from those facts. Therefore, we think the answer tendered no issue. Hence, the motion for judgment on the pleadings was well taken and properly sustained by the court below.

It appears that Prather was the only party against whom judgment was entered. He was the only defendant served, and the only one over whom the court hp.d acquired jurisdiction. The obligation was joint and several, and allowing and entering judgment against one jointly and severally bound with others was strictly in accordance with the terms fixed by himself in the written instrument, and was not error.

Judgment affirmed.