
    Brenzinger et al. v. The American Exchange Bank.
    , Party granted new trial — On- condition of giving bond to secure possible judgment — Bondsmen estopped to deny validity of bond.
    
    When the trial court is of the opinion that a party is not in strict right entitled to a new trial, but grants to such party a new trial on condition that he give bond to pay any judgment which might be recovered on such new trial, and he complies with the condition and has the benefit of the new trial, the parties to such bond are estopped from claiming that such bend is invalid.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Lucas county.
    
      Mr. W. H. A. Read, for plaintiffs in error, cited and commented upon the following authorities:
    
      United States v. Freight Assn., 166 U. S., 290; 15 Enc. Pl. & Pr., 284, 287; Brown v. Byam, 59 Ia., 52; Worth v. Wetmore, 87 Ia., 62; Niagara Ins. Co. v. Rodecker, 47 Ia., 162; Watson v. Paine, 25 Ohio St., 340; Frazier v. Williams, 24 Ohio St., 625; Braden v. Hoffman, 46 Ohio St., 639; Wellman v. Wellman, 6 C. D. 61; 9 C. C.R., 72; 4 Am. & Eng. Enc. Law (2 ed.), 629, 674; Beach on Modern Law of Contracts, Sec. 1534; Kent’s Com., 476; Haws v. Marchant, 1 Curt. (U. S. ), 140; Whitehead v. Governor, 6 Port. (Ala.), 343; Brown v. Brown, 37 Minn., 128; Hargrave v. Boero, 23 S. W. Rep., 403; Anderson v. Railway Co., 54 N. Y., 335; Johnson v. Taylor, 5 Smed. & Mar. (Miss.), 92; Howell v. Mills, 53 N. Y., 322; Ancoin v. Guillot, 10 La. An., 124; Casey v. Malidore, 53 Pac. Rep., 60; Bonnett v. Townsend, 17 N. Y. Supp., 566; Honduras v. Soto, 112 N. Y., 310; 2 Hill’s Am. Code, Sec. 400; Yates v. Guthrie, 119 N. Y., 420; Halsey v. Flink, 15 Abb. Pr., 367; Commonwealth v. Wistar, 142 Pa. St., 373; People v. Cabannes, 20 Cal., 525; Railway Co. v. McClure, 58 Kan., 109; Bank v. Benjamin, 61 Wis., 512; Heffner v. Scranton, 27 Ohio St., 579; Thompson v. Buffington, 7 Dec., 557; 7 N. P., 134; Railroad Co. v. Lee, 32 S. W. Rep., 249.
    
      Mr. TJ. G. Denman and Messrs. Smith d Beckwith, for defendant in error, cited and commented upon the following authorities :
    Hilliard on New Trials, 6, 14, 15; Heffner v. Scranton, 27 Ohio St., 579; Haggin v. Christian, 1 A. K. Marsh. (Ky.), 430; Itwin v. Riley, 68 Ga., 605; Prunty v. Mitchell, 30 Gratt. (Va.), 247; Gaines v. Dailey, 1 J. J. Marsh. (Ky.), 479; Brentam v. Musgrove, 25 Ill., 152; 3 Harrison (N. J.), 47; Jackson v. Eddy, 2 Cow., 598; Dean v. King, 22 Ohio St., 118, 134; Fenn v. Railway Co., 13 S. W. Rep., 273; Johnson v. Taylor, 3 Smed. & M., 92; Ex parte Beavers, 34 Ala., 73; Casey v. Malidore, 53 Pac. Rep., 60; Brooks v. Railway Co., 110 Cal., 173; Rice v. Gashire, 13 Cal., 53; Bulkin v. Ehret, 20 N. Y., 731; Stokes v. Stokes, 56 N. Y., 637; Battelle v. Connor, 6 Cal., 140; Prunty v. Mitchell, 30 Gratt., 247; Stephens v. Broadmax, 5 Ala., 258; Hoyt v. Murphy, 23 Ala., 456; Dewey v. Leonhardt, 37 Mo. App., 517; Ferguson v. 
      Gilbert, 16 Ohio St., 88; Smith v. Bailey, 26 Ohio St., 1; Durrell v. Boyd, 9 Ohio St., 72; Sedan v. Church, 29 Kan., 190; Railroad Co. v. Rahmann, 22 Ohio St., 446; Haldeman v. Johnson, 54 Pac. Rep., 507; Prunty v. Mitchell, 30 Gratt., 251; Garoutte v. Holey, 38 P. R., 194; Johnson v. Johnson, 47 S. W. Rep., 883; Knight v. State, 54 Ohio St., 365; Lainey v. Bradford, 4 Rich., 1; Edwards v. Lewis, 18 Ala., 494; Thwaites v. Sainsbury, 7 Bing., 437; 1 Graham & Waterman on New Trials, 604; Burrall v. Acker, 23 Wend., 606; Miller v. Rhoades, 20 Ohio St., 494; Mays v. Joseph, 34 Ohio St., 22; Martin v. Bolenbaugh, 42 Ohio St., 508.
   By the Court:

In an action by the defendant in error against the plaintiff in error, William F. Brenzinger, a verdict was rendered for the bank. Brenzinger made a motion for a new trial. The journal entry as to the motion is as follows: “This cause coming on for hearing on the motion of the defendant for a new trial, the court on consideration thereof ordered that said motion be overruled, unless said defendant give bond to the plaintiff in the sum of five hundred dollars ($500) with sufficient surety, to the approval of the court, conditioned that said defendant will pay and satisfy any judgment which said plaintiff may recover against said defendant in said action.” The bond was given, Carrie K. Brenzinger being security thereon, and a new trial was thereupon awarded. On the new trial the bank recovered a judgment against Brenzinger, and being unable to collect the same from him, brought suit on the bond. Both defendants demurred to the. petition on the ground that it did not state a cause of action. The demurrer was overruled and judgment-was rendered by tbe court of common pleas for the plaintiff, which was affirmed by the circuit court.

It does not appear in this case that William F. Brenzinger was entitled to a new trial in the original action. On the contrary it appears that the court overruled his motion for a new trial and that he did not predicate error upon that judgment, but allowed it to stand. The court, however, gave him the opportunity to have a new trial on condition that he would give bond for the payment of such judgment as might be obtained against him on such new trial. He did not complain of this, gave the bond and had his opportunity under the new trial, and having had the fruits of his acceptance of the condition, now seeks to repudiate his bond. We think that the plaintiffs in error are not only bound by their agreement under the circumstances; but that the court having found that Brenzinger was not in strict right entitled to a new trial, might in its discretion allow a new trial upon the. reasonable condition named, at least if the other party did not object. The judgments of the circuit court and of the court of common pleas are

Affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.  