
    Harrison Secrest et al. v. Barbee & Royston.
    1. An issue of fact joined and determined, and which, the parties thereto have the right to have tried by a jury, is an indispensable requisite to the allowance of a second trial under the statute.
    2. An undertaking for a second trial is purely statutory, and, in determining its legal effect, reference should be had to the statute which authorizes its execution and prescribes its object, and to the' state of the pleadings in the action in which it is given.
    3. The undertaking required of a party for a second trial, whose defense is several in its nature, and which, when established, goes no further than to exonerate him from liability, binds such party only to the performance of the judgment or order that may be finally rendered against him.
    4. Where an undertaking is given to obtain a second trial by the only party entitled to such trial, which, in its terms, purports to bind the makers to perform the judgment which may be rendered against all the defendants, consequent upon such second trial, the legal effect of such undertaking is to render the makers liable only for such judgment as may be rendered against the party taking the second trial; and if such trial results in his favor, no liability arises on the undertaking.
    Error to the district court of Guernsey county.
    The original action was instituted in the court of common pleas of Guernsey county, by the defendants in error, against the plaintiffs in error, Harrison Secrest and Jacob Secrest, upon an undertaking, of which the following is a copy:
    “ The State of Ohio, Guernsey county. Court of common pleas of said county. Barbee & Royston, plaintiffs, against Harrison Seorest and J. B. Allison, defendants.
    “ Whereas, at the August term, A. D. 1859, of said court of '^common pleas within and for the said county, in a certain civil action in said court pending, wherein Barbee & Royston were plaintiffs, and Harrison Secrest and J. B. Allison were defendants, a certain judgment was by the said court rendered in favor of the said plaintiffs and against the said defendants for the sum of twelve hundred and fifty-one dollars and six cents damages, and-dollars and-cents costs of suit; and whereas, the said defendants (being desirous of a second trial in said civil action), at the said term of the said court, entered on the records of said court due notice of their intention to demand such second trial. We do, therefore, hereby bind ourselves to the said Barbee & Royston in the sum of two thousand dollars (being the sum fixed by the said court in such behalf) that the said Harrison Secrest and J. B. Allison shall abide and perform the order and judgment of the said court against them, and shall also pay all moneys, costs, and damages which may be required or awarded against them by the said court, •consequent upon such second trial.
    “Harrison Secrest,
    “Jacob Secrest.
    “ Cambridge, September 2, a. d. 1859.”
    The plaintiffs, in their original petition, state that at the August term, 1859, of the court of common pleas of G-uernsey county, in a certain action then pending in said court, wherein they, the said Barbee & Royston, were plaintiffs, and Harrison Secrest and J. B. Allison were defendants, the plaintiffs recovered a judgment against the defendants Secrest and Allison for $1,251.06 and costs; that the defendants, by entry upon the record of said court at said term, gave notice that they demanded a second trial, and that the court, 'being of opinion that the cause was one in which either party might demand a second trial, granted the same, and fixed the amount of the undertaking to be given at two thousand dollars; that afterward, on the second day of September, 1859, said Harrison Secrest .and Jacob Secrest filed, in the clerk’s office of the said court of common pleas, with the clerk thereof, for the use of the plaintiffs, the undertaking for second trial, a copy of which is above set forth, which was duly ^approved by the clerk. It further appears by the petition, that such proceedings were had on the second trial that, at the March term of the court, 1861, the plaintiffs recovered a judgment against the defendant, J. B. Allison, for $1,369.90 and costs; that execution had been issued thereon and returned wholly unsatisfied, for want of property of said Allison whereon to levy. The plaintiffs aver that they have a right to recover from the do-, fendants, Harrison Secrest and Jacob Secrest, on said undertaking, the amount of said judgment and costs; and they ask judgment accordingly.
    The defendants, Harrison and Jacob Secrest, in their answer to the petition^set up, among other things, by way of defense, that in the action of Barbee & Royston against Allison and Secrest, in the petition mentioned, Allison did not demur to or answer the petition, or make any defense in the action, but permitted judgment to bo rendered against him on his default. That Allison did not enter on the record of the court notice that he would demand or ask for a second trial, or authorize such notice to be entered; that Allison at no time desired such second trial, and never took any step, by entering into or giving, or by asking any other person to enter into or give any undertaking, to obtain a second trial, nor did Allison have a second trial of the cause.
    The plaintiffs demurred to the answer, on the ground that it did not show a defense.
    The demurrer was sustained by the court, and judgment rendered in favor of the. plaintiffs as asked for in their petition.
    On petition in error, the judgment was affirmed by the district court; and the object of the present proceeding is to obtain a reversal of these judgments.
    
      B. 8. Qowen, for plaintiffs in error:
    Allison did not entitle himself to a second trial by any act of his. He could not do this without entering into an undertaking for that purpose. If the taking of a new trial by Harrison Secrest did vacate the first judgment, as against Allison, which I do not admit, it by no means follows' that the Secrests became the sureties of Allison. The law imposes *no such hard conditions upon parties litigant, who may happen to be sued with a party or parties who are wholly irresponsible, as in this case. It has long been the policy in Ohio to give to parties second trials upon favorable terms.
    I think I am warranted in saying that this court not only never have, but never will hold any one as liable on a bond for an appeal or undertaking for a second trial, in a case where the principal did not entitle himself to a second trial by such bond or undertaking. "Why should it be so held ? The principal derives no benefit from it. The obligee or promisee is not prejudiced by it. It is a void instrument as to all parties besides the sureties, and so of course void as to them.
    If the Secrests were liable on the undertaking for the alleged breach, they were liable as the sureties of Allison. Unless Allison entered into the undertaking, they could not be his sureties. It is not stated in the petition that Allison did “ enter into the undertaking.” For this cause'the petition was bad on demurrer.
    The answer states that Allison “ did not enter into the undertaking,” For this cause the answer was good on demurrer.
    The Secrests did not undertake that a judgment against Allison alone should be paid; and the only breach stated in the petition is the non-payment of a judgment against Allison. Eor this, cause the petition was bad on demurrer.
    The liability of sureties “ is never to be extended beyond the strict letter of the obligation into which they have entered.” See S. & C. Stat. 1155, secs. 1, 2; The State v. Bowman, 10 Ohio, 445, 450; Ewers v. Rutlege, 4 Ohio St. 210; Bentley v. Dorcas, 11 Ohio St. 398; The State v. Medary, 13 Ohio, 554, 565; McGovney v. The State, 20 Ohio, 98; Myers v. Ingersoll, 6 Ohio St. 501; 17 Ohio, 565; 20 Ohio, 6; Strange et al. v. Lee, 3 East, 484.
    
      Moans & Bushfield, for defendants in error:
    The statute gives the right to a second trial to any party, where the court had original jurisdiction, and either party has the right to demand a jury, and where there is an issue of fact between any two of them by their pleadings. S. & O. 1155.
    *The demand for- a second trial was, according to the record, by both defendants, Allison and Secrest. The undertaking was signed for both, conditioned that both should abide and perform the judgment against them, etc. ■
    To entitle a party to a second trial under the statute, he need not sign the undertaking himself. 10 Ohio, 445; 11 Ohio St. 404. Although the language of the act regulating appeals, etc., (S. & O. 1162) differs from the act granting second trials (S. & C. 1155), there can be no difference in principle.
    The recitals in the undertaking show it to be as much for Allison as Secrest; and being for both, it is necessarily for each. 11 Ohio St. 408. The demurrer to the petition was properly sustained.
    Secrest might have given an undertaking for himself alone, and had he done so, he would have secured a second trial for himself and been free from all liability for Allison. But he elected to include Allison, and “the sureties in a bond given by all are sureties of all, and bound for the default of all.” Bentley v. Dorcas, 11 Ohio St. 408.
    The record and undertaking must speak for themselves, and the demurrer to the answer contradicting them was properly sustained.
    Harrison Secrest opened up the judgment as well against Allison as against himself, and gave to Allison the opportunity, if he desired it, to contest the claim of Barbee & Royston. Having done -bo, he should not be permitted to avoid, but should be compelled to bear the full consequences of his act.
    
      John Ferguson, for plaintiffs in error, in reply:
    It being,.as we claim, nowhere alleged in the record of this case that Allison executed the bond or procured the approval and execution thereof, in his behalf, we think it can not be said that he joined, or that Seerest joined with him in taking the second trial.
    If in this we are correct, is it not true, independently of all other questions in the case, that the Secrests are not the sureties of Allison, and that the only construction which can be given the bond, and its condition, to give it effect at all, is *that it is the bond of Harrison Seerest and his surety stipulating for the payment of such judgment as might be rendered against him .alone.
   White, J.

In the action in which the undertaking sued on was given, the only issue of fact was between Barbee & Boyston, the plaintiffs, and Harrison Seerest, one of the defendants; the other defendant, Allison, being in default. The damages, therefore, must have been assessed against Allison on default, and against Seerest on the finding of the issue against him. Judgment was rendered against both.

On the second trial the finding on' the issue was for Seerest; and, on this finding, judgment was rendered in his favor, against the plaintiffs. A separate judgment was also rendered against Allison in favor of the plaintiffs.

The precise character of the defense set up by Seerest is- not stated; but it must be presumed to have been several in its nature, such as to go no further when established than to exonerate himself from liability to the plaintiffs, leaving the cause of action against Allison intact.

Upon this view alone could Allison properly have been held liable, and Seerest at the same time discharged. If the defense was joint in its nature, and went to the validity of the cause of action, that is, to the right of the plaintiffs to recover against either of the defendants, it would, to the extent it w.as established, have inured to the benefit of Allison.

In determining the construction and legal effect of the under taking, which is purely statutory, we must look to the statute which authorizes its execution and prescribes its object; and to the state of the pleadings in the action in which it is given.

The statute provides in substance : That a second trial may be demanded in any civil action in the court of common pleas, • • • in which either party has the right, by law, to demand a trial by jury, and in which an issue of fact has been joined between the parties, or any two of them, by their pleadings in the action, and after judgment has been rendered, upon the terms and in the manner thereinafter provided.

The second seciion declares : Any person desirous of such second trial, as provided for in the preceding section, shall, at *the term at which judgment was rendered, enter on the records of the court notice of Ms demand for such second trial; and shall enter into an undertaking within the time therein limited, with security, etc., payable to the adverse party, in such sum, etc., and conditioned to the effect that the party obtaining such second trial shall abide and perform the order and judgment of the court, and pay all moneys, costs, and damages which may be required or awarded against him, consequent uj>on such second trial.

An issue of fact joined and determined, and which the parties thereto have the right to have tried by a jury, is an indispensable condition to the allowance of a second trial. The object is to allow to the party aggrieved by the finding a retrial of the issue; and if there be no such issue, there can be no second trial. Sprague, Adm’r, v. Childs, 16 Ohio St. 116.

It is only the party entitled to a second trial who is authorized to enter of record his demand for it; and the statement in the petition, as well as the recital in the undertaking, that both defendants caused such notice to be entered is the same, in legal effect, as if it appeared that the demand had been made by Secrest alone. As to Allison, the demand was unauthorized and of no effect.

The giving of the undertaking is a condition imposed on the party entitled to and taking the second trial. It is required to be given to the adverse party to the issue to be retried, and to bind the party giving it to perform the order of judgment that may be finally entered against him; and it is evidently intended as a security to indemnify the party to whom it is given against the consequence resulting from the second trial.

Literally construed, the undertaking now in question imposed a. liability on tbe makers to answer only for any judgment or order that might be rendered against tbe defendants, Allison and Secrest, jointly. But construed as we tbink it ought to be, in tbe light of tbe statute, and with reference to tbe state of tbe case in which it was given, and in view of tbe object for which alone it was authorized, its legal effect, in our opinion, is to bind tbe makers only for tbe default of ^Harrison Secrest, who was tbe only defendant authorized to take a second trial.

Tbe judgment of tbe district court and that of tbe common pleas will be reversed, and tbe cause remanded to tbe court last named for further proceedings. ” *

Day, C. J., and Welch, Brinkerhoee, and Scott, JJ., concurred.  