Menage v. Newcomb

¶1This is an action against defendants as sureties upon, two undertakings executed upon two appeals to this court from orders of the district court. Each is conditioned that the appellants named therein “shall pay the costs of said appeal … if said order, or any part thereof, is affirmed, or said appeal dismissed, and shall abide and satisfy the judgment or order which the appellate court may give therein.” One of the appeals was dismissed, and the order appealed from in the other affirmed. In each, judgment was entered here in plaintiff’s favor for the taxed costs of appeal. Thereupon, by the terms of their “undertakings,” the defendants became liable to pay the amount of the two judgments to the plaintiff. Payment to the cleric of this court of his fees embraced in the judgments, unless authorized or sanctioned by plaintiff, was not payment to plaintiff, and therefore not available as a defence, partial or otherwise, to an action upon the undertakings. With these views the judgment of the court below accords, and it is therefore affirmed.