
    Thomas Mitchell v. Lewis Shuert.
    
      Power of Supreme Qovrt: Judgment against sureties on Appeal Bond. When judgment is taken against sureties in the Circuit, upon an appeal bond, and the judgment against the principal defendants is removed to this court and increased in amount, this court has no power to make the judgment against the sureties correspond with the increased amount. The unlertakmg is special and statutory. The statute contains no saving clause in case of removal of the judgment to this court.
    
      Heard and Decided May 12th.
    
    Case made from St. Joseph Circuit.-
    Motion for judgment against sureties on appeal bond.
    Mitchell sued Shuert before a justice, and recovered judgment.
    Shuert appealed to the Circuit Court, giving the usual appeal bond with sureties.
    In the Circuit Court Mitchell recovered judgment for a less amount, and, on motion, he then took judgment against the sureties. Mitchell then brought the cáse to this court for review on case made.
    In this court it was held that the Circuit Court erred in not giving judgment for the full amount rendered by the justice.
    Mitchell then moved for judgment in this court against the sureties on the appeal bond, which had been given before the justice.
    
      J. B. Shipman, for plaintiff.
    
      Mason & Allison, for defendant.
   Per Curiam.

We do not think we have authority to render judgment against ’ the sureties as requested. Their undertaking is special and statutory, and the statute provides precisely what consequences shall follow a breach. At his option the appellee may take judgment against them on motion and without process. This is a wide departure' from the common law course of proceeding, and such a judgment could not be sustained, except that the party must be understood to have agreed to it by his contract. But the statute also says the sureties shall be discharged unless execution is issued within thirty days. It contains no saving for the case of the removal of the judgment to this court, and we have no power to make any. The statute in regard to cases made, it is true, provides that we may render such judgment as the court below should have rendered; but this, we think, must be understood of the judgment upon the issue between the parties. The law giving summary remedy against the sureties belongs to a class which can not be extended by construction.

Motion denied.  