
    HENRY T. RAY and FERDINAND DANGER, Respondents, v. MARGARET RAY, D. LEVY, ET AL., Appellants.
    Record on Aeread. — On appeal from a judgment, without a statement or bill of exceptions, nothing belongs to the record except the judgment roll, and no question outside of the record can be considered by this court.
    Damages.' — The word “ damages” as used in the United States statutes, concerning supersedeas bonds on writ of error and appeal to the supreme court of the United States, includes the loss which the defendant in error or appellee may sustain by reason of not having the judgment appealed from paid or executed.
    
      Pleadings and Proof on Supersedeas Bonds. — In an action upon a super-sedeas bond in a case wherein the proceedings have been-staid by the bond, it is not necessary to allege or prove that the action in which the bond was given, was an appealable one.
    Appeal from tbe second judicial district, Ada county.
    
      A. Heed and A. Smith, for tbe appellants.
    
      Brumbaclc & Cahalan, for tbe respondents.
   PRICKETT, J.,

delivered tbe opinion.

Hollister, C. J., and Clark, J., concurred.

Tbis is an action upon a supersedeas bond given by tbe defendant Margaret Eay as principal, and tbe other defendants as sureties, upon an appeal from a judgment of tbis court to tbe supreme court of tbe United States.

Tbe complaint alleges in effect, tbat on tbe fifth day of June, 1873, the defendant Margaret Eay commenced an action in tbe district court of Ada county, against tbe plaintiffs in tbis action, in wbicb a decree was rendered in lier favor; tbat tbe plaintiffs in tbis action appealed from such decree to tbis court, wbicb reversed tbe decree of tbe court below, and directed tbe cause to be remanded with instructions to tbe district court to dismiss tbe bill of complaint. Tbat upon an appeal from tbe last mentioned judgment, by said Margaret Eay, to tbe supreme court of tbe United States, tbe bond in suit, in tbe sum of two thousand dollars, conditioned to pay all damages and costs, was given; tbat on tbe thirty-first day of March, 1874, tbe bond was approved by tbe chief justice of tbis court and was filed in tbe cause; tbat all proceedings upon tbe judgment were thereupon stayed until tbe fourteenth day of February, 1876, when, after a dismissal of tbe appeal by tbe supreme court of tbe United States, tbe district court again became possessed of tbe case by a remittitur from tbe supreme court of tbe territory.

Tbat on tbe twenty-second day of March, 1876, final judgment in tbat action was rendered in tbe district court, dismissing tbe bill, and for costs amounting to four hundred and eighty-nine dollars and eighty-seven cents, which remained wholly due and unpaid, and for which sum judgment was demanded against the makers of the supersedeas bond. The summons was served on the defendant Levy, only, and he appeared and filed a demurrer to the complaint on the grounds “that it does not state facts sufficient to constitute a cause of action, and that it is ambiguous, unintelligible, and uncertain.” Afterwards, said Levy answered the complaint, admitting the execution of the obligation sued upon, and denying that it was executed for the purpose of staying proceedings in the suit in which it was given, and upon information and belief denying that such proceedings were stayed, or that said bond operated as a supersedeas, and alleging that Margaret Bay, the principal in said bond named, was solvent, and was the owner of a large amount of property, real and personal, in the county, and that no demand had been made upon her to pay the judgment.

On the thirtieth day of December, 1876, a jury trial being waived, the cause was tried by the court, and a judgment rendered against the defendants for the sum of four hundred and eiglity-nine dollars and eighty-seven cents damages and nineteen dollars and forty-five cents costs of the suit, said judgment to be enforced against the joint property of all the defendants, and the separate property of the defendant Levy, who alone was served with the summons.

From this judgment the defendant, Levy, appeals to this court, and alleges as error: That the court below erred in overruling the demurrer to the complaint, because it does not appear in the complaint that the case iu which the bond sued upon was given, was an appealable one; that it does not show that the amount in controversy in that suit exceeded one thousand dollars, the amount necessary to give the supreme court of the United States jurisdiction; that the judgment was for costs, and no memorandum was filed; and that there was no supersedeas or stay of proceedings in the case. ■ .

There is no settled statement or bill of exceptions in the transcript in this ease, and nothing can be considered except the judgment-roll. This court has repeatedly decided, and now affirms, that on an appeal from a judgment, without a statement or bill of exceptions, nothing belongs to the record, except the judgment-roll, and no question outside of that record can be considered by this court. There is in the transcript a -copy of what purports to be a statement on motion for a new trial, but it does not appear to have been presented to, or settled by, the court or judge who tried the case, and for the purposes of this review, it might as well have been left out.

All that we can consider on this appeal is the question, whether the complaint contains facts sufficient to constitute a cause of action, and to support the judgment. The bond upon which the action was brought, and which is made a part of the complaint, is conditioned, that if the plaintiff, Margaret Ray, “shall prosecute her said appeal to effect, and answer all costs and damages, if she shall fail to make good her plea, then this obligation shall be void; otherwise to remain in full force and virtue.” It was argued, at the hearing, that the damages sued for were not of such character as couldhave been within the legal contemplation of the obligors named in the bond; that the damages which they became liable for, were those that should accrue after the execution of the bond. •

The requirement of the act of congress and rules of the supreme court, in order that a writ of error or an appeal shall operate as a supersedeas and stay of execution, are that security be given for the whole amount of the judgment, in case of a money judgment, and “good and sufficient security” in all cases; that the plaintiff in error, or appellant, shall prosecute his writ or appeal to effect, and if he fail to make his plea good, shall answer all damages and costs. The object and legal effect of such bond is to stay the enforcement of the judgment pending the appeal; and the damages are not confined to those which may be awarded by the appellate court for the delay, or prospective damages, but include those which the appellee may sustain by reason of not having his judgment paid or enforced. In this case the plaintiffs were prevented by the supersedeas bond from recovering and enforcing the judgment for costs, set forth in the complaint, and that judgment is tbe measure of, or at least is included in tbe damages wbicb they bave sustained, as a direct result of tbe giving of tbe bond by tbe defendants.

Tbe only other point that we deem it necessary to notice is, whether it should appear in tbe complaint that tbe case in which tbe bond was given was an appealable one. In other words, whether it was a case in wbicb a sufficient amount was in controversy, to give tbe supreme court of tbe United States jurisdiction. Tbe condition of tbe bond is that tbe appellant shall prosecute her appeal to effect, wbicb means with success. It can make no difference what tbe reasons of her failure were. Whether it was because tbe supreme court détermined that it bad no jurisdiction, or whether her appeal was dismissed on other grounds, tbe condition of tbe bond was equally broken in either case. It would not be good law to bold that a party may avail himself of tbe process of a court, and then escape tbe responsibility and consequences of bis own act on tbe ground that tbe court to wbicb be took bis case bad no jurisdiction over tbe subject-matter in controversy. It is not necessary to allege or prove, in an action of this kind, that tbe case appealed wras an appealable one.

Tbe complaint in this case alleges tbe making and giving of tbe bond, its breach and tbe consequent damages, and is in every respect sufficient. Tbe answer admits tbe execution of tbe bond, and does not show a performance of tbe condition, or a release of it, or any other matter in bar of a recovery. Tbe court below might well bave rendered judgment on tbe pleadings.

Tbe judgment is affirmed.  