
    APPEALS — PRINCIPAL AND SURETIES.
    [Franklin (1st) Circuit Court,
    January 24, 1911.]
    Rockel, Dustin and Allread, JJ.
    
      Shedd & Pembroke et al. v. D. P. Cooke.
    Surety not Liable on Appeal Dismissed for Wdnt of Prosecution Pursuant to Rule of Court.
    A surety upon an appeal bond, executed in .conformity to Gen. Code 10383, providing that appellant will prosecute appeal to effect without unnecessary delay, is not liable to appellee under Gen. Code 10393 where the cause on appeal, having been , perfected as provided by Gen. Code 10384, and petition and answer filed is dismissed for want of prosecution under a rule of court directing the dismissal of cases “not noticed for trial for two consecutive terms” after being at issue.
    Error to common- pleas court.
    
      Ed. Howard, for plaintiffs in error:
    Cited and commented upon by the following authorities: Burris v. Peacock, 2 Dee. Re. 482 (3 "W. L. M. 264) ; Rudershauer v. Pagels, 8 Cire. Dec. 11 (4 R. 327) ; Job v. Harlan, 13 Ohio St. 492; Gimperling v. Hanes, 40 Ohio St. 114; State v. Sullivan, 81 Ohio St. 79 [90 N. E. Rep. 146; 26 L. R. A. (N. S.) 514] ; Trent v. Rhomberg, 66 Tex. 249 [18 S. W. Rep. 510] ; Albertson v. McGee, 15 Tenn. (7 Yerg.) 106; Earthaus v. Otvings, 6 Har. & J. (Md.) 134; Howell v. Milling Co. 36 Neb. 80 [54 N„ W. Rep. 126; 38 Am. St.'Rep. 694] ; Wood v. Thomas, 5 Blaekf. (Ind.) . 553; Legate v. Marr, 8 Blaekf. (Ind.) 404; Fowler v. Thorn, 4 Ark. 208, 210; Babcock v. Carter, 117 Ala. 575 [23 So. Rep. 487; 67 Am. St. Rep. 193] ; Sasscer v. Walker, 5 Grill. & J. (Ind.) 102 [25 Am-. Dec. 273] ; Marryott v. Young, 33 N. J. L. (4 Vroom) 336; Berghoff v. Ileckwolf, 26 Mo. 511; Lawler v. Gordon, 91 III. 602: Wilcox v. Daniels, 22 Mo. 493; Dunterman v. Storey, 40 Neb. 447 [58 N. W: Rep. 949] ; Irwin v. Lloyd, 65 Ohio St. 55 [61 N. E. Rep. 157] ; Propeller Ogontz v. Wick, 12 Ohio St. 333; Tan Ingen v. Berger, 82 Ohio St. 255 [92 N. E. Rep. 433] ; Champomier v. Washington, 2 La. Ann. 1013; Sutherland v. People, 22 111. 91; Chase v. Beraud, 29 Cal. 138; Hallanrv. Stiles, 61 Wis. 270 [21 N. W. Rep. 42] ; Helden v. Helden, 9 Wis. 508 ;. Stelle v. Lovejoy, 125 111. 352 [17 N. E. Rep. 711] ; Pass v. Payne, 63 Miss. 239; Coon v. McCormack, 69 Iowa 539, 540 [29 N. W. Rep. 455] ; McConnel v. Swailes, 3 111. (2 Scam.) 571; Dieckmann v. Hunt, 27 O. C. C. 836 (3_ O. L. R. ■ 286) ; Catlett v. Brodie, 22 U. S. (9 Wheat.) 553 [6 L. Ed. 158] ; Iiosenslein v. ,Tarr, 51 Fed. Rep. 368; Tarr v.-Rosenstein, 53 Fed. Rep. 112 [3 C. C. A. 466] ; George v. Bischoff, 68 111. 236; Flannagan v. Cleveland, 44 Neb. 58 [62 N. W. Rep. 297] ; Drennen v. Shay, 6 Dec. 341 (4 N. P. 184).
    
      Smith W. Bennett, for defendant in error;
    Cited and commented upon by the following authorities: Brewster v. Anderson, 1 Cire. Dec. 268 (1 R. 479) ; Burris v. Peacock, 2 Dee. Re. 482 (3 W. L. M. 264); Propeller Ogontz v. Wick, 12 Ohio St. 333; Job v. Harland, .13 Ohio St. 492; Irwiii v. Lloyd, 65 Ohio St. 55 [61 N. E. Rep. 157] ; Gordon v. Steinmetz, 71 Ohio St. 376 [73 N. E. 512] ; Willson Improvement Co. v. Malone, 78 Ohio St. 232 [85 N. E. Rep. 51] ; Dieckmann v. Hunt, 27 O. C. C. 836 (3 O. L. R. 286).
    
      
       Affirmed, no op., Shedd v. Cooke, 86 O. S. 364.
    
   R.OCKEL, J.

Plaintiff in error recovered a judgment before a justice of the peace against Sarah A. and Laura Sears. From said judgment the defendants appealed to the court of common pleas, filing an appeal bond upon which the defendant in error was a surety. Said proceedings were duly perfected in the court of common pleas. The plaintiffs filed their petition and the defendants their answer. The same was pending in the court of common pleas and said cause was properly at issue in the court of common pleas. According to a rule of the cdurt of common pleas, that if the “case is not noticed for trial for two consecutive terms of court after it is at issue or in default may be dismissed for want of prosecution or dropped from the docket.” This case not having been noticed as provided for in this rule was dismissed by the court of common pleas, the entry thereon being as follows, after giving the title of the case:

“Upon the call of the docket and no good cause being shown why this case should be retained, it is ordered by the court that it be dismissed without record or prejudice at the cost of the plaintiff. ’ ’

Thereafter the plaintiffs in error brought an action against the defendant in error before a justice of the peace on the appeal bond to recover against the defendant in error, who was surety on said bond, the amount conditioned for in said appeal bond, setting forth an alleged breach of said bond in this, that the plaintiffs did not prosecute their appeal to effect without unnecessary delay in the action that was pending in the common pleas court. In considering this question, it will be proper to consider the conditioned clause of the original bond. This read as follows:

“Now, therefore, we of Franklin county, Ohio, hereby promise and undertake to the said appellee in the sum and to the amount of $160, conditioned as follows:
“(1) That the said appellant will prosecute their appeal to effect and without unnecessary delay.
“(2) That if judgment be adjudged against said appellant on the appeal, we will satisfy such judgment and costs.”

This bond is in conformity to Gen. Code 10383 (R. S. 6584). The defendant contends thait because said defendants permitted said cause in the court of common pleas to be dismissed that, therefore, they did not prosecute their appeal to effect and without unnecessary delay.

This involves a consideration of what is meant and intended by the first condition of this bond. The entire matter being regulated by statute, necessarily other statutory provisions must be considered in determining the true meaning of this. In Gen. Code 10384 (R. S. 6585), we find that certain duties devolve upon the appellant in reference to his prosecution of the appeal in this, that he must file a transcript within a certain time. In Gen. Code 10393 (R. S. 6593), we find a provision as to when the surety is liable. This statute reads as follows:

“■When an appeal is dismissed, or judgment is entered in the court of common pleas against the appellant, the surety in the bond shall be liable to the appellee for the whole amount of the debt, costs, and damages, recovered against appellant.”

Taking these provisions together, we are of the opinion that, the first condition of the bond relates very largely to the per-' fection of the appeal. That is, that the appellant will, without unnecessary delay, have said appeal perfected, and that he will do all'things within a reasonable and proper time that are necessary to properly bring the action before the appellate court, and he will thereafter stand ready to do and perform whatever is proper and necessary in the due prosecution of the suit; that upon so doing this condition of the bond has been complied with. When the case comes up to the appellate court and is properly in that court, then it is subject to the laws relating to that court and to the rules which govern that court in the transaction of its business.

So, we are at a loss to understand how, in the case at bar, the defendant in error can be held to be liable on this bond. The defendants in the original action did all that was required of them, and, so far as the record shows, they were ready and willing to proceed further. If the case was not tried in the court above, it was not their fault. Unless the defendant has filed a cross petition in which he asks affirmative relief, it could hardly be expected that he would be so interested in its prosecution as that the court might presume that a duty devolved upon him to see that the prosecution did not fail. It is to the defendant’s interests that the prosecution shall fail in such instances, and it would be a violent presumption to assume the contrary.

We are, therefore, of the opinion that there was no error by the justice of' the peace in dismissing said action, nor in the court of common pleas in affirming the judgment of the justice.

The judgment of the court below, therefore, will be affirmed.

Dustin and Allread, JJ., concur.  