Jenicek v. Barman

THE COURT. On motion to dismiss or affirm, under Rule V, section 3. It seems clear that there is no merit in the points mentioned in the brief for appellants. The bond contains a direct condition that the defendants will pay the obligations of respondent up to the sum of $3,000 specified in the bond. Jenicek had a judgment against the obligees, which was a lien on their property. The complaint did not directly allege nonpayment of the said judgment, but it did allege that said judgment constituted a lien on the described real property. From this we conclude that there is not a total failure to allege nonpayment. It is now too [497]late for appellants on this appeal to urge for the first time that by reason of such a defect, the complaint does not state a cause of action. It is the opinion of the court that the motion should be granted. It is granted, and the judgment is affirmed.

(Bench decision, Jan. 23, 1933.)