
    Alber v. Froehlich.
    A, recovered a judgment before a justice of the peace upon a joint and several demand against S. and H., who jointly appealed the action to the court of common pleas. G-. and F., the sureties on the undertaking for appeal, say: “ I do hereby, pursuant to the statute in such case made and provided, promise and undertake that the appellants, if judgment be rendered against them on appeal, will satisfy such judgment and costs,” etc. In the appellate court A. recovered judgment against S. only. S. being insolvent, A. brought this action against the sureties on the undertaking in appeal. Held: The sureties are liable on their undertaking to satisfy the judgment against S.
    
      Lang v. Pike, 37 Ohio St. 498, overruled.
    Error to District Court of Cuyahoga county.
    Charles Alber (the plaintiff in error) recovered a judgment against Ludwig Strowbeck and Fred. Haag for $262.50 in an action pending before a justice of the peace in Cuyahoga county. Strowbeck and Haag, desiring to appeal the cause to the court of common pleas, John Froehlich and George Gabelee (the defendants in error) entered into the following undertaking, to wit:
    Charles Alber j v. >• Ludwig- Strowbeck and Fred. Haag, j
    Appeal .Bond.
    Whereas, on the 5th day of February, 1876, the said Charles Alber obtained a judgment against the said Ludwig Strowbeck and Fred. Haag, on the docket of O. P. McMillan, Justice of the Peace, for $262.50 damages, and for’ $44.10, cost of suit, and the said Ludwig Strowbeck and Fred. Haag intend to appeal therefrom to the court of common pleas of Cuyahoga county.
    Now, therefore, I, of Independence township, of Cuyahoga county, Ohio, do hereby, pursuant to the statute in such case made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding the sum of $614.40 and I do also undertake in said last mentioned sum that the said appellants will prosecute their appeal to effect, and without unnecessary delay.
    
      yy ., j. y Bail for appeal.
    George Gabelee.
    John Froehlich.
    Executed and acknowledged before me, and surety approved this 12th day of February, 1876.
    O. P. McMillan,
    Justice of the Peace, Independence Township.
    Afterwards proceedings were had in the common pleas court which resulted in a judgment, in favor of Alber, against Strowbeck alone, upon the same cause of action, for the sum of $295.29 and costs.
    Execution having issued on said judgment and returned “ no goods or chattels, lands or tenements found whereon to levy,” an action was brought upon the undertaking above set' forth. To a petition fully setting forth the above facts, a demurrer was filed and sustained by the court of common pleas, and such petition dismissed. The district court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to obtain a reversal of such judgments.
    
      Stone <& Hessenmueller, for plaintiff in error,
    claimed that La/ng v. Pike, 27 Ohio St. 501, was not the law of Ohio, and cited dissenting opinion in that case of Johnson, J., and Helt v. Whittier, 31 Ohio St. 475; Emerick v. Armstrong, 1 Ohio, 513 and 172; Ewers v. Rutledge, 4 Ohio St. 210; Secrest v. Babree, 17 Ohio St. 425, 427; Bentley v. Dorcas, 11 Ohio St. 398, 408; Hood v. Mathias, 21 Mo. (6 Bennett) 308; Cass v. Adams, 3 Ohio, 223; Burrel v. Vanderbilt, 1 Bosw. 637; Secors v. Morgan, 3 Reyes, 636; 4 Abb. (N. Y.) App. Dec., 172; 17 How. 394; 24 How. 467; 1 Wend. 90.
    ■ Peisley c& Stewart, for defendants in error:
    
      “ The bond speaks for itself; and the law is, that it shall so speak, and that the liabilities of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond ; and'if the words will not make them liable, nothing can. There is no construction, no equity, against sureties. If a bond cannot have effect according to its exact words, the law does not authorize the court to give it effect in some other Avay in order that it may prevail.” This applies to statutory undertakings. Lang v. Pike, 27 Ohio St. 503; State v. Medary, 17 Ohio, 565.
    The liability of a surety can never be extended beyond the strict letter of the obligation into which he has entered. State v. Cutting, 2 Ohio St. 1, 6; 20 Ohio, 97; 15 Pet. 208; 14 Pet 200-208; 9 Wheat. 702 ; 17 Wend. 422, 180.
   Doyle, J.

The action of the court's below, in sustaining the demurrer to the petition, was based upon the authority of the case of Lang v. Pike, 27 Ohio St. 498. The undertaking in this case differs from the one passed upon in that case only in the fact that there are tAVo sureties to the undertaking instead of one, and the facts of the two cases are otherwise identical.

We must, therefore, either affirm the judgments of the courts below, or disapprove the ruling in Lang v. Pike. We are compelled, af£er due consideration, to adopt the latter course.

That case was decided by a divided' court. The dissenting opinion of Johnson, J., expresses, in our judgment, the laAv of the case, and it will not be necessary now to go over the ground covered thereby. The statute governing the subject of appeal, and the undertaking therefor, is in this language; “ Sec. 6583. In all cases not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the court of common pleas of the county where the judgment was rendered.

“ Sec. 6584. The party aj>pealing shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by said justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and' costs, conditioned:

“ 1. That the appellant will prosecute his appeal to effect and without unnecessary delay.
“ 2. That if judgment will be adjudged against him on such appeal, he will satisfy such judgment and costs.”

It cannot be doubted that where judgment is rendered against two or more defendants, upon a joint and several demand either one of the defendants may alone appeal upon giving an undertaking; or all the defendants may unite in appealing and perfect such appeal by a single undertaking. What the effect of the-appeal by one only would be, where the demand was several but a joint judgment was rendered, as to taking up the case as to both, it is not necessary to determine. This statute, therefore, which uses the singular number only, in speaking of the appellants, must be held to apply to all cases of appeals, whether the appellants, where the judgment is against more than one, unite, or act separately in perfecting their appeal.

A narrow construction of the statute, which would require each appellant to give a separate undertaking, would not be sanctioned. The intent of the legislature is very plain.

In construing the undertaking given “ pursuant to the statute” such intent is to be considered, if it is not in conflict with the plain terms of the undertaking. „

The judgment of the justice was against both defendants, upon a several demand, shown to be several by the judgment against one only in the court of common pleas. Defendants, instead of separately appealing from the judgment, united and this single undertaking was executed. The effect of it was to vacate the judgment against each, and the action thereupon was transferred to the court of common pleas for trial upon that cause of action, upon which a several judgment might be rendered.

In the light of the statute, and the state of the case, and considering the purpose of the undertaking as ascertained from the surrounding circumstances, its effect is precisely the same as if the sureties had executed a separate undertaking for each of the defendants. They undertake that the defendants will pay any judgment that may be rendered against them (or either of them) in an action in which, legally, a separate judgment may be rendered against one only, but by virtue of which undertaking the judgment is vacated as to both.

There cannot be the slightest doubt that such was the intention and understanding of the parties, and “to hold that the surety is discharged because the judgment is not against both, after he has arrested the right of the plaintiff to collect as to either, seems to me a narrow and technical construction of the statute, not required by its words nor the obvious intention of the legislature. Such construction tends to defeat rather than promote the administration of justice.” Johnson, J., in Lang v. Pike, supra.

That we have a right to look to the purposes of the statute, the state of the case in which the undertaking was given, the object for which it was authorized, and the surrounding circumstances, to ascertain the legal effect of defendants’ undertaking was expressly held by this court, in Insurance Company v. Hayes, 17 Ohio St. 432. See, also, Jewett v. Railway, 34 Ohio St. 607; Helt v. Whittier, 31 Ohio St. 475.

Judgments reversed.  