
    Albert Galloway vs. J. B. Yates and George B. Hayes.
    An undertaking (given on appeal from an order,) by which the parties executing the same agree in case a certain judgment be affirmed in whole or in part to pay such judgment, or the part as to which it is affirmed, will not support an action against such parties where it appears that as a matter of fact no such judgment was ever rendered.
    The refusal to pay a judgment entered in accordance with the affirmance of the order appealed from in such case, is not a breach of the undertaking.
    This action was brought iu the District Court of Mower county, upon an undertaking on appeal, executed by the defendants in a certain action in said Court, wherein the above named Albert Galloway was plaintiff, and William Litchfield, Valorus P. Lewis and Franklin D. Lewis were defendants, which recites that a verdict was returned in said action in favor of the plaintiff, and against the defendants therein, for $105.60 ; that the defendants in said action moved to set aside'the verdict, for a new trial and in arrest of judgment; that thereupon the Court ordered judgment to be entered on said verdict, for said sum, and for defendants’ charges and disbursements, to be taxed by the Clerk, and for other relief as by reference to said judgment will appear, and that all further proceedings be stayed until the decision of said motion ; that afterwards said motion was denied, and the defendants feeling aggrieved thereby, intend to appeal therefrom to the Supreme Court of the State of Minnesota. And the defendants Yates and Hayes therein, undertake “ that the said appellants (defendants in said action,) shall prosecute their ajipeal with effect, and pay all costs and damages which may be awarded against them on said appeal, not exceeding 'two hundred and fifty dollars, and that if said judgment be affirmed, or any part thereof be affirmed, said appellants shall pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, and shall abide the order and judgment which the Appellate Court .may make in the premises.” The plaintiff in his complaint sets out substantially the execution of the undertaking, its terms and recitals, and alleges that the defendants in said action did prosecute their appeal in said Supreme Court; that said Court by its decision in said action “ordered that the said order appealed from be reversed unless the respondent therein, within ten days after service of a copy of said order, should remit from the verdict of the jury the statutory damages assessed against said Litchfield and Yalorus P. Lewis, and consent to take judgment against Franklin D. Lewis alone, in which event said order appealed from was affirmedthat saidaction was remanded to the Court below, when, the plaintiff having remitted from the verdict of the jury the statutory damages assessed against the other defendants, judgment was rendered against said Franklin D. Lewis alone for $105.60 ; that execution was issued on said judgment, which was returned '■'■nulla bona;’’'' but it contains no averment that judgment was entered, before the appeal, or before the undertaking was executed. The answer, in brief, avers that the defendants have fully kept the covenants contained in the undertaking; avers that at the time of the execution of the undertaking there was no judgment entered up in said cause; that no judgment of said Court, (the Court below,) nor any part of any judgment in said Court, in said cause was affirmed, by the Supreme Court on said appeal.
    A motion was made by the plaintiff that judgment be rendered in favor of the plaintiff, notwithstanding the answer, which motion was allowed, and from the order allowing th$ same, the defendant appeals to this Court.
    C. G. Ripley for Appellant.
    
      Jones & Butler for Respondent.
   By the Court

Berry, J.

— We deem it unnecessary to determine the questions of practice raised by the counsel for the appellants. Granting that the answer was sham or frivolous, and that it was entirely proper to disregard it, we think the respondent was not entitled to judgment upon his complaint, for reasons which go to the merits of the case. We infer from the complaint that no judgment had in fact been entered prior to the former appeal, both because the complaint in this action omits to set out the entry of any such judgment, and because none was reversed or set aside by the Supreme Court. We do not see how it could be contended that on an appeal from an order denying a motion to set aside a verdict, &e., no judgment having in fact been entered, an undertaking by which the parties executing the same, bind themselves in case a judgment which has no existence “be affirmed or any part thereof be affirmed,” that they will “pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed,” could possess any force or vitality whatever. Nor granting that judgment had actually been entered, do we perceive how an action could be maintained upon such an undertaking, without some further allegation and proof of the existence of a judgment, than the loose recital or rather allusion to its rendition contained in the undertaking upon which the present action is brought. It is not claimed that there has been any breach of the agreements mentioned in the undertaking, except in respect of the non-payment of the judgment. Was there any breach in this respect ? By the terms of the undertaking, the appellants bound themselves, “if said judgment be affirmed or any part thereof be affirmed,” to pay “the amount directed to be paid by the judgment or the part of such amount as to which the judgment shall be affirmed.” Now, even assuming that a judgment had been entered before the appeal was taken, has the contingency upon the occurring of which they bound themselves to pay arrived ? The order of the Appellate Court was (8 Minn., 188,) “that the said order appealed from be reversed, unless the plaintiff (that is, the respondent here,) should remit from the verdict of the jury the statutory damages assessed against said Litchfield and V. P. Lewis, and consent to take judgment against F. D. Lewis alone, in which event said order appealed from is affirmed,” and the District Court “was instructed to permit the plaintiff to enter judgment therein upon the verdict in accordance with said order,’) which was done. Now all that was done by the Supreme Court, was to affirm or rather modify an order, not a judgment in whole or in part. This was not by the terms of the undertaking, the contingency upon the happening of which the appellants agreed to pay. There has been no breach upon their part.

The order of the Court below for judgment on the pleadings, and notwithstanding the answer, is reversed.  