Jewett v. Shoemaker

Appeal: enforcement of supersedeas bond. The sureties on a su1 persedeas bond cannot avail themselves, in resisting enforcement of the bond, of a defense which their principal might have interposed to the affirmance of the judgment. Judgment on supersedeas bond. On affirmance of a judgment the 2 appellate court may enter judgment against the sureties on the supersedeas bond, under Code, section 4140, without notice of the motion therefor. Adjudication. The entry of.judgment on a supersedeas bond by the 3 appellate court, to which appearance and objection was made by the sureties, is conclusive in a subsequent action to restrain enforcement of the bond.

Appeal from Pocahontas District Court.— Hon. A. U. Bailie, Judge. Shoemaker & Anderson recovered judgment in the district court of Pocahontas county against the Commercial Mutual Insurance Company of Des Moines for $1,035.60 and costs on the 16th day of January, 1899. Thereafter notice of appeal was served upon the clerk of court, and an attempt'made to serve the same upon the judgment plaintiff. In October following, the insurance company filed with the clerk of the district court a supersedeas bond, conditioned as provided in section 4128, Code, v.ith the plaintiffs as sureties. Thereafter an abstract was tiled with the clerk of this court, asserting that, “ within six months from rendering judgment, the defendant gave notice of appeal in said cause, served the same on the plaintiffs and on the clerk of said court, and perfected said appeal in all things as required by law.” In January, 1901, the appellees therein, Shoemaker & Anderson, asked for the certification of the record, including the supersedeas bond, and moved that the judgment be affirmed, and also that, judgment be entered against the sureties. The company then asked for a continuance, which was denied. On May 3, 1901, the appellee therein again moved for judgment on the bond against the sureties, showing a dismissal of the appeal, which operated to affirm the judgment of the district court. This was resisted by the sureties on the grounds: (1) that they were not notified of the pendency of the motion; (2) that the court had lost jurisdiction through the dismissal of the appeal at a fonner term of court; (3) that they had a complete defense and were entitled to be heard; (4) that, as the appeal was dismissed, the provisions of section 4140 of the Code did not apply; and (5) that the motion failed to set 'out the notice of appeal and return. This was re-enforced by an affidavit of their attorney to the effect that they had a good defense, and a further statement in resistance that no notice of appeal had ever been served, and that the court was without jurisdiction. No showing concerning the service of notice, additional to that quoted from the abstract, was made. Appellee moved that the papers filed by the sureties be stricken on the ground that they were not parties to the action. This motion was not ruled on, but the motion for judgment was sustained, and judgment entered against the sureties. Thereupon execution was issued, and in this action the sureties seek to enjoin the enforcement of the judgment on the ground that the notice of appeal was not properly served on Shoemaker & Anderson. The petition was dismissed, and they appeal.