
    CARR & HOBSON (Limited) v. ANN J. A. STERLING.
    
      Undertaking on arrest, invalid as a statutory undertaking.—“Final judgment”—meaning of the phrase as used in such undertaking—Rights and liabilities of the undertaker.
    
    The final judgment, to the mandate issued on which the party executing the undertaking undertakes that the arrested party shall render himself amenable, is a judgment upon the very claim on which the order of arrest was made, as it was presented by that order. Consequently, no liability arises on such an undertaking, out of the failure of the defendant to render himself amenable to a mandate issued on a judgment rend ered not only for that claim, but also for a claim not then made.
    
      A fortiori, no liability arises when the additional claim, for which judgment was rendered, is founded on a cause of action not originally contained in the complaint, but inserted therein by amendment made under the order of the court, after defendant’s defense in answering, and after the time to amend as of course had expired.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
    
      Decided May 3, 1886.
    Exception taken by plaintiff to the dismissal of complaint, at trial term, before a jury, ordered to be heard in the first instance at general term.
    The facts appear in the opinion.
    
      John L. Logan, attorney and of counsel for plaintiff,
    as bearing on the questions considered in the opinion, argued :—The law seems to be settled that the bail cannot impeach the judgment obtained against the principal except by application upon the judgment itself (Jewett v. Crane, 35 Barb. 208 ; Burnel v. Lynch, 44 N. Y. 162).
    
      L. Lajlin Kellogg, attorney and of counsel for defendant,
    as bearing on the questions considered in the opinion, argued :—The plaintiff cannot recover in the case, for the reason that the judgment against the defendant Holt, in the action in which the arrest was granted, is illegal and void. The complaint in that action asked judgment for $1,000 and interest. Judgment was entered by order of the court for $13,618.66, with interest from April 3, 1882, or an increase of $6,618.66. This judgment was given by default. The defendant Holt never appeared. It is claimed that this judgment is illegal and void. It is distinctly provided in the Code, that “where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint (Code Civ. Pro. § 1207). A judgment granting relief not demanded in the complaint is not merely irregular but void or voidable for want of authority in the court to render it (Simonson v. Blake, 12 Abb. 331; Andrews v. Monilaus, 8 Hun, 
      65; Bartlett v. Holmes, 12 Ib. 398 ; Hurd v. Leavensworth, 1 C. R. N. S. 278 ; Briggs v. Oliver, 68 N. Y. 336 ; Argall v. Pitts, 78 Ib. 243). It is held that this provision was intended in favor of persons who are defendants and who are interested in the defense of the action (Peck, as Trustee v. N. Y. & N. J. R. R. Co., 85 N. Y. 246). In case of a lack of jurisdiction in the body to make the decision, the decision may be attacked whenever it is asserted, for if there was no authorized body or court there could be no authorized decision (Osterhaudt v. Hyland, 27 Hun, 167; Lange v. Benedict, 73 N. Y. 12). It thus appears that the judgment as entered was wholly beyond the jurisdiction of the court. This judgment was preliminary to the issuance of the executions. The executions could not be issued until the judgment had been duly rendered. It was not duly rendered or entered or given by the court as pleaded in the complaint, for the reason that the court had no jurisdiction to render such a judgment. This defendant was interested in it, for she could not be held liable on her undertaking until judgment had duly and regularly, within the jurisdiction of the court, been had against this defendant. Her rights were injured by this judgment, because she would have been entitled to have had the amounts paid by the defendant Holt tó the plaintiff, as alleged in its complaint, $2,381.20, taken out of the original sum, for which he was sued, in contradistinction from having them taken out of the enlarged sum. The court was wrong in its admission of this judgment-roll, upon the objection of the defendant’s counsel, and under his exception, while it was right in dismissing the complaint upon this as one of the grounds.
   Per Curiam.

The action was upon an undertaking signed by the defendant. In an action by the present plaintiff against one Holt, an order for the arrest of Holt had been executed, and the undertaking, it will be assumed, was given to secure the release of Holt from custody. The order of arrest recited that the “ground of the arrest is the embezzlement and appropriation to his own use, by the said defendant, of funds belonging to said plaintiff, amounting to about $7,000.” The undertaking provided, after referring to the order of arrest “that the above named defendant, arrested as aforesaid, shall at all times render himself amenable. to any mandate which may be issued to enforce a final judgment against him in the action.”

The complaint in the action against Holt alleged “that he appropriated, of the funds belonging to said plaintiff, to his own use, sums equal in amount to $7,000,” and demanded judgment “for the sum of $7,000.” Holt did not appear in the action and an order of reference was made “ to take proof as to the truth of the allegations of the complaint.” The testimony before the referee disclosed that the defendant had embezzled other amounts than such as composed the sum of $7,000, demanded in the complaint, and that the aggregate of the embezzlements was $13,618.66, and this amount was reported as proved. On the report and an affidavit, an order, ex parte was made “that the complaint be amended so as to entitle the plaintiff to recover $13,618.66 . . and judgment is hereby ordered to be entered in conformity with the report of said referee.” Judgment was accordingly entered. Execution, first against the property, and then against the person of the defendant Holt was issued, and return made to the former “ no personal or real pronerty, ” and to the latter “ defendant not found.”

It is to be observed that in reality the amendment added to the complaint new causes of action. The action was not upon contract, or for money had and received, when perhaps the law might imply a single promise to return all the amounts embezzled, but was for embezzlements, each one of which formed a separate cause of action. The amendments not having been served upon the defendant Holt, he had not confessed their truth nor had there been any default of answer as to them. The time to amend as of course had passed. Section 1207 provided that when there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. To justify a recovery against the present defendant, it would be necessary to hold that she undertook that the defendant Holt, would render himself on an execution upon a judgment which would embrace a claim which the plaintiff had not made against him, and which had not been competently adjudicated between the plaintiff and him.

In Toles v. Adee (91 N. Y. 562), it was held that where, as in the present case, the undertaking was not valid as a statutory undertaking of bail, a defendant was held to the obligations of a surety under a contract voluntarily made upon consideration, and had the rights of such a surety. The inquiry is pertinent, what “final judgment ” did the contract intend should be the foundation of the mandate to which Holt should render himself amenable ? It necessarily must have been a judgment upon the very claim which was then made, and which was the only claim the parties had in view, and not a claim which the plaintiff had not asserted, and of which they and the present defendant were ignorant. 'Whether the defendant would have undertaken that Holt should render himself to a judgment for the amount that it was entered for, is speculative. It is clear that she provided against an unfortunate decision as to this, by contracting only in respect of the claim as it was presented.

Furthermore, she was entitled to the benefit of such action as Holt might take, in respect of any part of the claim which the plaintiff might make erroneously. It certainly was not meant that the judgment should be for a claim of which Holt should have no notice. For these reasons the judge below correctly held, that the plaintiffs had no cause of action. They had not shown a breach of the undertaking.

Other facts were shown, which tended to sustain the defense, on other grounds. The matters that have been examined present that question which on the trial was the most free from doubt, as to whether the case should have gone to the jury.

Exception overruled.  