Wood v. Derrickson — 1 Hilt. 410

Majority

p. 410

George T. Wood v. James T. Derrickson and John Clapp, Jr.

Headnote

To sustain an action upon an undertaking given on appeal, it is not necessary that an execution should have been issued upon the judgment when affirmed. The undertaking is forfeited and the liability of the sureties fixed as soon as the judgment of affirmance takes place, and the debtor makes default in its payment.

In such an action, an answer which sets up that the defendant in the judgment owned real estate, and the execution issued was returned by the sheriff before the expiration of sixty days, at the plaintiff’s request, without attempting to make the money out of the real estate, is frivolous.

Appeal by defendants from an order made at special term by Jl^ge Brady, directing judgment on account of tbe frivolousness of an answer. Tbe action was upon an undertaking given on appeal in tbe usual form. Tbe nature of tbe defence set up in tbe answer is stated in tbe opinion of tbe court.

Stephens -and Hoxie, for tbe appellants.

James M. Smith, Jr., for tbe respondent.

There is no ground upon wbicb this appeal can be sustained.

The action was upon an undertaking given on appeal, and was conditioned for tbe payment, of all costs and damages wbicb might be awarded on appeal, and of tbe judgment of affirmance. It did not require tbe issuing an execution, but was forfeited as soon as tbe affirmance of the judgment took place, and tbe debtor made default in its payment.

Tbe answer merely sets up that tbe defendant was tbe owner of real estate, and tbe execution issued was returned by tbe sheriff before tbe expiration of sixty days, at tbe plaintiff’s request, without attempting to make tbe money out of tbe real estate.

This formed no defence to tbe action. It did not relieve tbe defendants from their liability previously incurred. It may be

p. 411

that the surety might have required the creditor to issue an execution and levy on the real estate; but, without such a request, he cannot complain that the creditor has not pursued his remedy further against his debtor than the issue of an execution.

The order appealed from is affirmed, with costs.