
    Ann E. Smith v. Lewis Huesman and Anthony Greiner’s Administrator.
    1. A surety in an appeal bond can be held only upon the express words of his contract.
    2. The condition of an appeal bond is, that if the said H. shall and do well and truly prosecute said appeal to effect, and pay the full amount of the condemnation money in the district court aforesaid, and costs, in case a decree should be entered therein in favor of said complainants, the appellees, then in such case the above obligation to be void and of none effect, otherwise to be and remain in full force and virtue in law. The-decree of the district court found that complainants were entitled to-an account against H., and ordered that the cause be referred to a master, to be appointed by the court of common pleas, to slate such account upon the principles of the decree of the district court, and that said defendants, including H., pay to complainants the amount found due on said account, when ascertained and stated, and costs. The cause went back to the common pleas, -the master was appointed, made report, gnd judgment was entered on the report. Held, such judgment of the court of common pleas is not the one provided- for in the appeal bond, and-,the surety is not liable on his undertaking.
    Error to the District Court of Montgomery county.
    The case arises on a demurrer to the following amended petition, except the caption :
    
      “ Said plaintiff, Ann E. Smith, for her amended petition-herein, represents to the court that heretofore, to wit, on the 21st day of June, a. d. 1853, said defendant, Lewis Huesman, and one Anthony Greiner, since deceased, at the county of Montgomery aforesaid, by their certain writing-obligatory of that date, under seal (a true copy of which is hereto attached as part of this petition, marked ‘ A ’),. acknowledged themselves, their and each of their heirs, executors, and administrators, to be held and firmly bound unto this plaintiff, Ann E. Smith (who is therein named and called Ann H. Smith), and Charles D. Smith, James P.. Smith, and Charlotte C. Dawson (all of whom áre now deceased,- aud whom this plaintiff survives), in the sum of two thousand five hundred dollars, which said writing obligatory was subject to certain conditions thereunder written, as follows, viz: ‘Whereas,in the term of April, a. d. 1853, of the court of common pleas, held at the court-house in Dayton, within and for the county of Montgomery aforesaid, by the consideration of the judges of said court, a decree in chancery was made against said Lewis Hues-man and others, for the one-half of certain land scrip, found by said court to have been received by them as heirs-of'John Smith, deceased, and of one-half of the net issues and profits and increase theteof, and that they should severally account to said complainants for the several amounts received by them, which said court found were received, to the extent of one-half, in trust for'said complainants, and said court ordered an account to be taken before John R. Knox, a master for the purpose, according to the principles of said decree, and from which said decree the said Lewis Huesman has given notice of appeal to the district court of Ohio, next to be holdeu within and for the county of Montgomery. Now the condition of the above obligation is such that if the said Lewis Huesman shall and do well and truly prosecute said appeal to effect, and pay the full amount of the condemnation money in the district court aforesaid, and costs, in case a decree should be entered therein in favor of the said complainants, the appellees, then and in sufch case the above obligation shall be void and of none effect, otherwise to be and remain in full force and virtue in law.’
    “ Plaintiff says that said bond or writing obligatory was accepted, and approved and filed, June 21, 1853, by the clerk of said court of common pleas, in due form of law ; that said appeal to said district court was duly perfected, and that said cause came on to be heard and considered by said district court at the June term thereof, a. d. 1856, to wit, on the 19th day of June, 1856, and, on consideration thereof, a decree was entered and rendered therein by said court in favor of the plaintiff and said Charles D. Smith, James P. Smith, and Charlotte C. Dawson, and against said Lewis Huesman, finding, among other things, the equity of said ease to be with said complainants in said cause, and against said Lewis Huesman as to certain land scrip issued to said Lewis Huesman and Harriet L. Heusiman, his wife, in her right, and scrip transferred to said Huesman ; that ■said complainants were entitled to one-half of said scrip, and •of the proceeds, issues, and profits thereof, and that said complainants (appellees as aforesaid) were entitled to an account with said Lewis Huesman of the amount of said ■scrip by him received, or received in said interest, jointly or severally, and to the one-half of the proceeds, profits, or issues thereof. The said court further found that the amount of said land scrip issued to said Lewis Huesman and Harriet L. Huesman, in her right, and otherwise delivered to said Lewis Huesman and received by him, was twenty-one hundred and eighty-seven dollars and sixty-four cents, ($2,-187.64), to one-half of which, said complainants in said action (appellees as aforesaid) were entitled, and to one-half of the lands purchased with any part thereof and remaining unsold at commencement of said suit, and to one-half ■of the proceeds, profits, and interest of a:iy lands purchased with any part thereof, and i’emaining unsold at commencement of said suit, and to one-half of the proceeds, profits, and interest of any lands purchased with any part thereof (if any), but sold before the commencement of said suit, with interest thereon, and to half of such scrip which was disposed of for money, with interest thereon from its issue, subject to an account for taxes paid and reasonable expenses, etc. And it was further ordered, adjudged, and decreed by said district court, at the term and date aforesaid, in said action aforesaid, that said cause stand referred to a master commissioner to be appointed by the court of common pleas of said county, to state an account between the complainants (appellees as aforesaid) and the defendants therein respectively, including said Lewis Huesman (appellant as aforesaid) upon the principles of said decree and of said findings of said court, •and that said defendants therein respectively, including said Lewis Huesman (appellant as aforesaid), pay to said, •complainants in said cause (appellees as aforesaid) the amount found due from them on said account when ascertained and stated, and also the costs in said cause, taxed at $-. And it was, by said district court, at the dale and term aforesaid, in said cause further ordered that a special mandate should issue to said court of common pleas to take •such further action as should be necessary to carry said judgment into execution.
    
      “ Said plaintiff further says that said cause having been •sent to said court of common pleas, pursuant to said mandate the said court of common pleas, at the July term thereof, A. d. 1856, to wit, August 4, 1856, appointed E. S. Young a special master commissioner to examine and state an account according to said decree of said district court, and that at the April term of said court, a. d. 1858, to wit, April 6, 1858, the said master commissioner filed his said report in said court, finding that there was due to said plaintiff and said Charles D. Smith, James.P. Smith, and Charlotte C. Dawson, complainants and appellees as aforesaid, from said Lewis Huesman, the sum of fifteen hundred and nine-eight dollars and fifty-four cents ($1,598.54), with interest from March 15, 1858, and afterward, at the June term, 1858, of said court, to wit, on the 18th day of June, 1858, the said court approved and confirmed said report, .and thereupon entered up a judgment and decree of.said •court in favor of said Ann E. Smith, this plaintiff, and ■Charles D. Smith, James P. Smith, and Charlotte C. Dawson, appellees as aforesaid, and against said defendant, Lewis Huesman, for said sum of fifteen hundred and niuety-eight dollars and fifty-four cents ($1,598.54), with interest from March 15, 1858, and costs, and also for sale of certain real estate in said decree described; that an order for sale of said real estate was issued from said court on said •decree to the sheriff of Putnam county, Ohio, which order was returned, property not sold; that a second order of :sale under said deci’ee was issued to said sheriff December 22, 1858, and said real estate thereunder duly sold, sale reported to said court, and at the March term thereof, to wit, on the 30th of March, a. d. 1859, the sale confirmed and the-proceeds thereof, by order of said court, applied in part in payment of the costs of said suit, and the residue, eighty-five dollars and forty cents ($85.40), paid over to said appellees, at the date aforesaid, which stands as a creditor that sum on the judgment aforesaid, as of said date.
    “ Plaintiff1 says that said decree and judgment of said district court, and said decree and judgment of said court of common pleas made in pursuance thereof, remain unreversed and in full force and effect-, and wholly unpaid and' unsatisfied except as to the credit above stated, and that there is still due and unpaid on said decree and judgment' of said court of common pleas, and by said decree and judgment of the said district court adjudged to be paid by said Lewis Huesman, the sum of twenty-three hundred and four dollars and forty-two cents ($2,304.42), with interest from the 12th day of June, A. D. 1866; that said bond or writing obligatory has become absolute in law, and. said Lewis Huesman and Anthony Greiner then and thereby became bound to pay the same, to the extent of the residue remaining due and unpaid on said decree, and that they became indebted to the plaintiff as survivor as aforesaid, by reason of the premises, in the said sum of $2,304.42,. with interest from June 12, 1866.
    “ Plaintiff further says that said Anthony Greiner, after the accruing of said liability, and before the commencement of this action, departed this life testate, and that Maria Greiner, one of the original defendants herein, was duly appointed, qualified, and, at the commencement of this action, was acting as the executrix of the last will and testament of said Anthony Greiner, deceased; that letters were issued to her on the-day of Eebruai-y, 1863; that on the 12th day of June, 1866, the claim of the plaintiff as aforesaid, as survivor as aforesaid, was duly presented, duly attested, to said Maria Greiner, executrix as aforesaid, who-then refused, on demand made for that purpose, to indorse' on said claim her allowance of the same as a valid claim against the estate of said Anthony Greiner, deceased.
    
      “ Plaintiff says said Maria Greiner having deceased since the commencement of this action, Wendelin Schelhammer has been duly appointed and qualified as administrator, with will annexed, of the estate of said Anthony Greiner, and made party defendant to this action.
    “ Plaintiff says that neither said Lewis Iiuesman, nor said Anthony Greiner in his lifetime, nor either of his representatives as aforesaid, has paid said money or any part thereof, and that there is due to the plaintiff', as survivor as aforesaid, from said defendants, Lewis Huesman and Wendelin Schelhammer, administrator, with will annexed as aforesaid, on said writing obligatory, by reason of the premises, the said sum of twenty-three hundred and four dollars and forty-two cents ($2,304.42), with interest thereon from this 12th day of June, a. d. 1866, for which said plaintiff asks judgment against said Lewis Pluesman individually, and against said Wendelin Schelhammer, as-administrator, with will annexed of Anthony Greiner, deceased, and for- such other and further relief as she may be entitled to in the premises.
    “A. McMicken, Conover & Craighead, att’ys for plaintiffF
    
    This amended petition was demurred to by the administrator of the surety in the bond; the demurrrer was sustained by the court of common pleas, and judgment in favor of the surety. This judgment was affirmed by the district court, and a petition in error filed in the supreme court.
    
      Conover & Craighead and Andrew McMicken, for plaintiff in error:
    I. As to the validity of the bond. Gardener v. Woodyearf 1 Ohio, 170; State v. Findley, 10 Ohio, 51; Creighton v. Harden, 10 Ohio St. 579; Gandolfo v. Walker, 15 Ohio St. 251; Bentley v. Dorcas, 11 Ohio St. 398, 405, 406; State v. Corey, 16 Ohio St. 17; Creswell v. Nesbitt, 16 Ohio St. 35 
      .King v. Nichols, 16 Ohio St. 80; Kelley et al. v. State of Ohio, 25 Ohio St. 567.
    II. As to the effect of the bond. Creighton v. Harden, 10 Ohio St. 579; Bentley v. Dorcas, 11 Ohio St. 398.
    As to the liability of the surety. Quimby v. Walker, 14 ■Ohio St. 198 ; Gardener v. Goodyear, 1 Ohio, 177; Bentley v. Dorcas, 11 Ohio St.-404; Peabody v. Ohio, 4 Ohio St. 387; 10 Ohio St. 51; 16 Ohio St. 80; 25 Ohio St. 82; 22 Ohio St. 317.
    Was the appellant Huesman condemned by the district •court in said appeal to pay any money to the appellees ?
    What is the fair meaning of the words, “ pay in full the condemnation money in the district court ?” We claim that it is not merely or necessarily the finding of a certain amount due. Hamilton v. Jefferson, 13 Ohio, 427.
    It is the money which said district court should condemn —that is, should order and adjudge the appellant to pay. That amount might well be ascertained by the district ■court, by its own masters or officers, or under its authority by any other lawful agency, and thus that court itself ascertain such amount. That which an inferior court or officer does by the direct order and authority of a superior court, the superior court itself does. The decree was that Hues-man should pay whatever the master in the common pleas, •on statement of account, should find due — not that the court below should render judgment for that sum, but that by virtue of this order and decree of the district court it should be paid.
    But it is said the amount is left uncertain at the time of decree. We answer, that is certain which can be made certain. Williamson v. Hall, 1 Ohio St. 190.
    The district court certainly adjudged — i. e. condemned— Huesman to pay to the complainants money. If the judgment had been to pay money due on a certain note or bond, or judgment of some other court, so that amount could be definitely ascertained, then that amount when ascertained, must necessarily be held to be the money which he was condemned to pay.
    
      An undertaking to pay whatever the district court should order Huesman to pay, must be supposed to refer to and contemplate the ascertaining of the amount so ordered to-be paid, by any means lawful and proper for that court to employ.
    
      Houk & McMahon, for defendant:
    No final decree was ever made in the district court. Kelly v. Stansberry, 13 Ohio, 422 ; Beebe v. Russell, 19 How.. (ü. S.) 283.
    The district court could not decree the payment of' a sum of money'to be found or ascertained by some other-court upon the application of testimony to be thereafter taken. The decrees of courts, should be perfect in themselves and appear upon their own records. The Lucille, 19-Wall. 74.
    The surety is only bound by the express words of his ■ bond. McGovney v. The State, 20 Ohio, 93; Myers v.. Parker, 6 Ohio St. 501; Hall v. Williamson, 9 Ohio St. 23 ; Lang v. Pike, 27 Ohio St. 498. And as no decree was ever entered in the district court, as contemplated by the appeal bond, the surety is not liable.
   Wright, J.

The condition of the bond, it will be observed, is, that if the said Lewis Huesman shall and do well-' and truly prosecute said appeal to effect-, and pay the full amount of the condemnation money in the district court aforesaid, and costs, in case a decree should be entered therein in favor of said complainants, tfie appellees, then in such case the above obligation to be void and of none - effect, otherwise to be and remain in full force and virtue - in law.

This bond was executed in 1853. This is the old form. of condition prescribed in the law of 1831. Swan, 682. This law was repealed by the code, which prescribes the • condition, as follows:

“ Each appeal bond . . , shall be subject to a condition to the effect that the party appealing shall abide and.. perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required of, or awarded against, said party by such court.”

The authorities cited by counsel for plaintiff' in error, however, show that a bond is good when the condition is substantially that required by the statute, though its terms may not be exactly followed.

The question then recurs, whether the surety is liable.

That the surety is liable only upon the letter of his bond, 'is laid down in various cases. Lang v. Pike, 27 Ohio St. 498. In Hall v. Williamson, 9 Ohio St. 23, the suit was upon .an injunction bond. The condition recited that an injunction had been allowed to stay proceedings upon a certain judgment for $2,300. The amount in fact was $2,346.06. It was held incompetent to offer the record of the' judgment in evidence, as it was not the one described in the condition of the bond, and the surety was liable only upon its express terms.

In Myers v. Parker, 6 Ohio St. 501, a bond was executed in 1852, the condition of which was-to pay the condemnation money m the supreme court. That court had then been superseded by the district court, aud it was held that no action could be maintained upon the instrument. Scott, J., says the petition “ does not allege that there has beeu any condemnation of the appellant, or any decree entered in favor of the appellee, in the ‘ supreme court within and for the county of Lorain.’ At the date of the bond there was no such court. It had been superseded by the district court. Nor does the petition allege a mistake or clerical error in the bond. It would,'perhaps, have been useless to set up •such mistake. For the petition seeks to make Ingersoll liable as surety — to make him answer for the default of Myers. No principle is better settled than that a surety has a right to stand upon the very terms of his contract.”

The language of the bond in the case before us is, that the principal shall pay the “ condemnation money in the district court.” Does this cover a decree rendered by- the ■court of common pleas? The findings of the district court were that complainants were entitled' to one-half of certain land scrip, and of the proceeds and profits thereof; that they were entitled to an account of the same. That the amount of said scrip was a certain sum, one-half of which belonged to complainants, as also one-half of the lands purchased therewith. It was then ordered and decreed that the cause stand referred to a master to be appointed by the court of common pleas, to state an account upon the principles of the decree, and that defendants pay-complainants the amount found due in said account when ascertained and stated, and the cause was remanded for such further action as should be necessary to carry the judgment into execution.

This decree of the district court was at the June term, 1856. The case went back to the common pleas. A master was appointed, who reported, and the court approved that report, and rendered judgment in June, 1858, audit is this judgment that is said to be covered by the bond in question.

It is argued by counsel for plaintiff in error, and with force, that the action of the common pleas was in fact the .action of the district court; that what an inferior court does by the order of a superior court, the superior court itself does. But we hardly think that, this is a just application of the principle of agency. The court of common pleas acts in conformity with the mandate transmitted to it, and yet we do not suppose that it could render a judgment such as that the district court could issue execution upon it.

Clearly they are two distinct tribunals, and it would seem to be an unwarrantable strain upon words to say that a bond given to cover a judgment in one should be held to cover a judgment in the other.

It is true, the district court does say thát defendants shall pay the amount found due on said account when ascertained and stated, and the costs. The condition provides for the payment of the condemnation money in the district court and “ costs.” When the case goes back to the common pleas, and a master is occupied for two years In making a report, at an expense not usually trifling, are-all the “ costs ” occasioned by such proceeding, to be considered as the “ costs ” of the district court, against which the bond provides ?

We do not see how the action of the common pleas can be held to be that of the district court, when there has been no opportunity for approval or confirmation of that action. Had the master been appointed by the district court, his report would have been nugatory, until acted upon by the tribunal appointing him. And although the common pleas may have decreed, as it supposed, in conformity to-the direction of the higher court, we can not be absolutely certain of that fact until that court has said so. Suppose-an appeal had been taken from this last decree of the common pleas, and that decree affirmed, could this present bond have been brought into play by suit upon it, or must that suit have been upon the new appeal bond? Or suppose,, upon such new appeal, the decree of the common pleas had been reversed or modified, could the bond before us have-served any useful purpose in a litigation ?

In a case like this, we suppose the district court must have rendered such a judgment as from it the amount of the “ condemnation money ” can be determined.

In Hamilton v. Jeffers, 13 Ohio, 428, the action was upon, an appeal bond to the supreme court. The decree of that court found that u there is due the complainant some $1,500, and an interlocutory decree directs t'he respondent’s interest in the contract for 225 aeres of land and the-personal property, if the same remain on hand, to be sold,, and the avails to be applied in payment of the complainant’s debt, and the costs.”

The court in this case say : “ In this decree there is no-condemnation money. The appellant is condemned to pay nothing. The decree merely finds the amount due, and directs the sale of the securities for its discharge. . . . No execution cau issue on such finding against Tallmadge, for he is not decreed to pay anything.”

In the case before us, the district court does not decree.that any sum shall be paid ; it decrees that the party shall pay what another tribunal may direct him to pay. .We do not think that, under the circumstances, the surety can be held liable upon his undertaking, and the judgment is affirmed.  