Fry v. Astorg

KERRIGAN, J.

This is an appeal from the judgment and from an order denying the motion of the defendant the United States Fidelity and Guaranty Company for a new trial.

Several years ago the plaintiff’s assignor, Y. A. Hager, commenced an action against A. Astorg, M. Astorg, and F. Ginard to recover possession of certain lands and premises

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situate in Lake County, in which action the plaintiff ultimately recovered a judgment against the defendants. Thereafter the defendant A. Astorg gave notice of appeal from the judgment, and filed the undertaking on which this action was brought, which by its language purports to be given in an appeal taken not by Astorg alone, but by all of the defendants in that action. It recites as follows:

“Whereas the defendants in the above entitled action have appealed to the Supreme Court . . . from a judgment made and entered against said defendants; . . .

“Now therefore, in consideration of the premises and of

such appeal,

the United States Fidelity and Guaranty Company . . . does hereby undertake and promise on the part of the appellants that the said appellants will pay all costs and damages which may be awarded against them on the appeal. ...

“And whereas the appellants are desirous of staying the execution of the said judgment so appealed from in so far as it relates to the delivery of the possession of said lands and premises, the said The United States Fidelity and Guaranty Company does further,

in consideration thereof and of the

premises, undertake . . . that during the possession of such property by the appellants they will not permit or suffer to be permitted any waste thereon, and that if the said judgment appealed from be affirmed, or the appeal dismissed,

they will pay the value of the use

and occupation of the property from the time of the appeal until the delivery of the possession thereof, . . . .”