
    Hayes v. Weaver.
    
      Surety’s liability — Bond for stay of execution — For filing petition in Supreme Court to reverse circuit court — Surety on such bond held jor judgement rendered in Common Pleas Court,
    
    
      A bond for the stay of execution given pursuant to subdivision 1 of Section 6718, Revised Statutes, upon the filing of a petition in error in this court for the reversal of a judgment of the circuit court affirming the judgment of the common pleas court for the recovery of money, the obligation of the bond being that the principal and surety will pay the “condemnation money” and costs if the judgment be affirmed here, binds the surety for the payment of the amount of the original judgment with interest and costs upon affirmance by this court, although upon the filing of the petition'in error in the circuit court a bond for the stay of execution was given with a different surety.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Lucas county.
    Defendant in error brought suit against the plaintiff in error in the court of common pleas alleging in substance that on June 26, 1896, he had recovered a judgment in the court of common pleas against the Wheeling & Lake Erie Railway Company for $2,030.40 and costs taxed at $216.33; that the railway company had thereupon instituted proceedings in error in the circuit court where the judgment of the common pleas was affirmed; that the company then filed a petition in error in the supreme court to obtain a reversal of said judgments and executed, with Hayes as surety, an undertaking whereby said company and said surety bound themselves jointly and severally to pay the condemnation money and costs in case said judgment should be wholly or partly affirmed by the supreme court; that thereafter, upon a hearing in the supreme court, the judgment was affirmed; that the judgment is in full force and wholly unpaid, and praying for judgment for said several amounts with interest. A copy of the bond is attached to the petition and is as follows:
    Whereas, The Wheeling and Lake Erie Railway Company, a corporation of the State of Ohio, has instituted proceedings in error in the supreme court of Ohio, to reverse the judgment of the circuit court of Sandusky county, rendered at the June term, A. D., 1896, thereof, to-wit: On the 7th day of July,, A. D., 1896, whereby said circuit court affirmed the judgment of the court of common pleas of said county, in favor of George F. Weaver and against the said The Wheeling and Lake Erie Railway Company in a certain suit then pending in said court of common pleas, wherein said George F. Weaver was. plaintiff and said The Wheeling and Lake Erie Railway Company was defendant, for the sum of two thousand and thirty dollars and forty cents, and for the costs of said suit.
    Now, therefore, we, The Wheeling and Lake Erie Railway Company and Birchard A. Hayes, jointly and severally do bind ourselves unto the said George F. Weaver in the sum of five thousand ($5,000.00) dollars.
    That if the said judgment shall be affirmed in whole or in part, we will pay to the said George F. Weaver, the condemnation money the whole or the part of said judgment so affirmed and the costs that have accrued or that may accrue in all courts.
    In his answer Hayes admitted the allegations of fact contained in the petition, but denies that his undertaking was to pay the condemnation money of the judgment of the common pleas court in case the judgment of the circuit court should be affirmed in whole or in part by the supreme court, but admits that his obligation was to pay the condemnation money of the judgment of the circuit court in case it should be so affirmed; he further alleges that, with the knowledge of all the parties, when the railway company filed its petition in error in the circuit court for the reversal of the judgment of the common pleas, it gave a bond with the Fidelity & Deposit Company as surety whereby they jointly and severally bound themselves to pay .the condemnation money if-said judgment should be affirmed by the circuit court. In the court of common pleas portions of this answer were, on motion, stricken out, and judgment was rendered in favor of Weaver for the full amount claimed in the petition and this judgment was affirmed by the circuit court.
    
      Birchard A. Hayes, for plaintiff in error.
    
      First. There was no consideration for the execution of the second bond.
    
      Second, The condition of the second bond was to pay costs only.
    A careful examination of section 6718 shows that it is not the “undertaking,” but the “proceeding to reverse,” that “operates to stay execution.” And Section 6710 of the Revised Statutes authorizes a reversal by the supreme court of a judgment of the court of common pleas, when that reversal is rendered after a proceeding in error in the circuit court. And the practice of this court is in proper cases, to reverse, not only the judgment of the circuit court, but also that of the common pleas court, as was done in the following cases selected at random from the last volume of Ohio State Reports: Railway 
      
      Company v. Andrews, 58 Ohio St., 426; Benedict v. Peters, 58 Ohio St., 572.
    In its opinion in the case at bar the circuit court intimated that it would have held the second bond to be without consideration, but for the case of Hyde v. Bank, 49 Ohio St., 60.
    There seems to be no statutory authority to stay execution of a judgment of affirmance; when judgment is affirmed by the circuit court, the cause is remanded to the court of common pleas for execution. There is no such thing as staying the mandate.
    The contract of a surety is void if it be without consideration. 2 Story on Contracts, Sec. 1110 (page 320 of 5th edition). Powers v. Crane, 67 California, 65; 7 Pacific, 135; Lyons v. Lancaster, 33 Southwestern, 838; Powers v. Chabot, 93 California, 266; Post v. Doremus, 60 New York, 371; McCallien v. Hibernia Society, 98 California, 442.
    The supreme court having “affirmed in whole” the said judgment (to-wit, the judgment of the circuit court) the question arises what amount is due on the bond?
    The plaintiff-below claims it is the amount of the condemnation money of the judgment of the court of common pleas and costs.
    The defendant-below claims it is costs only, there being no condemnation money mentioned in the judgment of the circuit court.
    The principle is well settled that a surety has a right to stand upon the letter of his bond. In order to render the defendant-below liable for the amount of the judgment rendered by the court of common pleas, it is necessary after the words “the condemnation money,” in the last paragraph of the bond in ■question, to insert the words “of the judgment of the court of common pleas.”
    We have been unable to find any case decided by an Ohio court in a suit on an error bond given in the appellate court in which the question here involved is made. Smith v. Huesman, 30 Ohio St., 662; Myers v. Parker, 6 Ohio St., 501; Hall v. Williamson, 9 Ohio St., 17; Hamilton v. Jefferson, 13 Ohio, 427.
    So in the case at bar, the judgment is one of affirmance, the railway company is condemned to pay nothing. Miller v. Stewart, 9 Wheaton, 680; McGovney v. State, 20 Ohio, 93; State v. Medary, 17 Ohio 554.
    So in the case at bar “it may be said if the bond do not embrace” the judgment of the court of common pleas, it embraces nothing, or next to nothing, only costs; “and that the officer who took it failed in intelligence. The reply to all this is, that the bond speaks for itself; and the law is that it shall so speak; and that the liability of sureties is limited to the exact letter of the bond.” Greenville v. Anderson, 58 Ohio St., 463.
    
      Finefrock & Garver, for defendants in error.
    It will be seen that Sec. 6718 Eevised Statutes provides that the bond shall be in double the amount of the judgment or order, to the effect that the plaintiff-in-error will pay the condemnation money and costs of the judgment if final order be affirmed in whole or in part.
    BurwelPs Law Dictionary defines condemnation money, “The damages which the party failing in an action is adjudged or condemned to' pay; sometimes simply called condemnable.” Blackstone, Yol. 3, p. 291.
    
      The fact that the statute provides that the bond shall be in double the amount of the judgment and costs, we insist, shows conclusively it meant the entire judgment. Besides it will be seen that the-very language of the statute is to pay the condemnation money and costs; and so is the language of the-bond. To give this statute and the bond the interpretation which the plaintiff-in-error is seeking to-have placed upon them, it would be required to strike out from the bond and the statute the words “condemnation money,” and would then read to pay the-costs only. Hyde v. The Bank, 49 Ohio St., 60; Hartwell v. Smith, 15 Ohio St., 200.
    Sureties to a writ of error bond, executed on removing a case from one court to another, are discharged by the execution of a new writ of error bond by new sureties, taking the case from the latter into-a higher tribunal. Thus where a case was removed by a writ of error' from the county to the circuit court, and there affirmed, and subsequently by a, writ of error was taken to the supreme court, it was held that the execution of the writ of error bond in the latter case operated as discharge of the sureties in the former bond. Winston v. Rives, Sup. Ct. Ala., Stewart & Porter Reports, V. 4, p. 269; Justices v. Sparks et al., Georgia Reports Vol. 6, p. 432; Roberts v. Dust et al., 4 Ohio St., 502.
    The bond should not be construed to defeat, but should be liberally construed to sustain the intention; to preserve rather than to destroy; and to make every word operate if possible. Secrest v. Barber, 17 Ohio St., 45; Helt v. Whittler, 31 Ohio St., 475; Alexander v. Jacoby, 23 Ohio St., 358; King v. Bishop, 44 Ohio St., 221; Albert v. Froehlich, 39 Ohio St., 245.
   By the Court:

The bond executed by the Fidelity & Deposit Company as surety operated to stay the judgment of the common pleas court, or to suspend the payment of the “condemnation money,” only until the affirmance by the circuit court. The further suspension to await the judgment of this court was a consideration ’for the execution by the plaintiff in error, as surety, of the bond on which the present judgment was recovered.

The phrase “condemnation money” as used in the first subdivision of section 6718 of the Revised Statutes, and in the bond counted upon in the present case, means the money, which by the original judgment the plaintiff in error, the principal in the bond, is adjudged to pay. In the common pleas the motion to strike out should have been treated as a general demurrer to the answer and sustained. But since the facts admitted in the answer entitled the plaintiff there to a judgment, notwithstanding the matters alleged for the purpose of avoidance, the practice adopted did not operate prejudicially to the plaintiff in error.

Judgment affirmed.  