Wood v. Orford

Myrick, J.: A suit was brought upon a promissory note executed by the defendant Mary J. Orford, before her marriage. Robert Or-ford, with whom she intermarried after the making of the note, was joined with her as a defendant, on the theory that a hus[158]band is responsible for the debts of his wife contracted before marriage, and the Court below gave judgment against both defendants. From this judgment, the defendants jointly appealed; and on their behalf an undertaking on appeal and to stay execution was executed by Hevcrin and Sweeny, sureties. On the appeal, this Court reversed the judgment as to the defendant Robert Orford, and affirmed it as to Mary J. Orford. Upon the going down of the remittitur, the Court below, after notice to Hevcrin and Sweeny, rendered judgment against them on their undertaking, under § 942, Code of Civil Procedure.

Hevcrin and Sweeny prosecute this appeal from the judgment against them, and make two points, viz. :

1. In giving the notice to Hevcrin and Sweeny, the plaintiff by inadvertence served the original notice and affidavit upon Hevcrin, instead of a copy.

It does not appear that he was at all misled by the inavdertence; he had notice of the time, place, and object, as well by the original as he could have had by a copy; and it docs not appear from the transcript that he noted the objection in the Court below that he now makes in this Court.

The Court, in its judgment, found that “ due and legal written notice ” had been served upon said Hevcrin and Sweeny. They did not appear in response to the notice. Subsequently they obtained a stay of execution, and moved the Court to set aside the judgment against them, but upon what ground does not appear.

2. The judgment having been affirmed as to Mary J. Orford, and reversed as to Robert Orford, the condition of the undertaking given on appeal has not been broken. The condition being, “ that if said judgment appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant will pay in gold coin the amount directed to be paid by the judgment or order, or the part of such amount, as to which the same shall be affirmed,” etc., it is no affirmance of the judgment or any part thereof if it be affirmed as to one of the defendants only; to constitute an affirmance, it should have been affirmed, so far as it be affirmed at all, as to both of the defendants.