Donovan v. Clark

This action was brought to recover upon an undertaking given on appeal pursuant to §§ 1326, 1327 and 1334 of the Code of Civil Procedure. It is conceded that the undertaking to secure the costs was joint and several, but the question is whether that part of the undertaking given to- secure the payment of the judgment was joint or joint and several. In the part-of the undertaking whicli relates to the payments of costs and damages, it is provided that the principals “ do jointly and severally, pursuant to the statute in such case made and provided, undertake,” etc. And the clause relating to the payment provides: “And do also undertake that, if the judgment so appealed from, or any part thereof, is affirmed,” etc. We think this undertaking is joint and several in both of its parts and the words, “ and do alsd undertake,” undoubtedly refer to the character of the obligation entered into by the sureties. This construction is enforced, not only from the position of the words quoted in the undertaking itself, but also by the evident intent to give an undertaking , pursuant to the statute, which required that the undertaking should be joint and several; and the presumption must be indulged in that the parties intended to give such an undertaking as the statute requires. Again, the plea in abatement is not sufficient in law. It is not averred that the co-obligor is living,, and within the jurisdiction of the court. Exceptions overruled and judgment ordered on verdict, with costs.