
    APPEAL — ATTACHMENT—PRINCIPAL AND SURETY.
    [Monroe (7th) Circuit Court,
    April Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.
    Citizens Tr. & Guar. Co. v. Fred L. Timberlake.
    Surety on Appeal Bond Approved not Released by Plaintiff’s Discharging Property Attached.
    The surety on a bond given to appeal a cause from the judgment of a justice of the peace to the court of common pleas is not released by the plaintiff discharging, after the approval of the appeal bond and before judgment in the court of common pleas, the property of the defendant held by a writ of attachment.
    [Syllabus approved by the court.]
    ■ Error to common pleas court.
    
      F. A. Jeffers, for plaintiff in error:
    Cited and commented upon by the following authorities: Curtice v. Bothamly, 90 Mass. (8 Allen) 336; Robinson v. Masterson, 136 Mass. 560; Wright v. Rowland, 4 Abb. Dec. (N. Y.) 649; 2 Cent. Dig. p. 2678; Magill v. Sauer, 61 Ya. (20 Gratt.) 540; Danforth v. Carter, 4 Iowa (4 Clark) 230; State v. Mc-Clothlin, 61 Iowa 312 [16 N. W. Eep. 137] ; 2 Wade, Attachments Sec. 412; Shinn, Attach. & Garn. See. 4; Fidelity Deposit Co. v. Bowen, 123 Iowa 356 [98 N. W. Eep. 897; 6 L. E. A. (N. S.) 1023] ; American Bonding Co. v. Bank, 97 Md. 598 [55 Atl. Eep. 395; 99 Am. St. Eep. 472] ; McClung v. Beirne, 37 Ya. (10 Leigh) 394 [34 Am. Dec. 739] ; Peirce v. Higgins, 101 Ind. 178; Smith v. Josselyn, 40 Ohio St. 409; Dixon v. Ewing, 3 Ohio 280 [17 Am. Dec. 590] ; Day v. Ramey, 40 Ohio St. 446; Maquoketa •v. Wylley, 35 Iowa 323; Little Rock- Ft. S. Ry. v. Wells, 61 Ark. 354 [33 S. W.,Eep. 208; 30 L. E. A. 560; 54 Am. St. Eep. 216] ; City Bank v. Young, 43 N. II. 457; 4 Cye. 573; Hawkins v. Mins, 36 Ark. 145 [38 Am. Eep. 30] ; Everly v. Rice, 20 Pa. St. 297; Lewis v. Armstrong, 80 Ga. 402 [7 S. E. Eep. 114] ; Robeson v. Roberts, 20 Ind. 155 [83 Am. Dee. 308] ; McKenzie v. Wyley, 27 W. Ya. 658; Commonwealth v. Vanderslice, 8 S. & E. (Pa.) 452; Concordia Sav. & Aid-Assn. v. Read, 
      124 N. Y. 189 [26 N. E. Rep. 347] ; Minor v. Smith, 13 Ohio St. 79; Bank of Steubewuille v. Leavitt, 5 Ohio 207; Commercial Bank v. Bank, 11 Ohio 444 [38 Am. Dec. 739] ; 2 Cyc. 947, 949; Bingham v. Mearé, 4 N. D. 437 [61 N. W. Rep. 808; 27 L. R..A. 257].
    
      Mats & Kramer, for defendant in error.
   POLLOCK, J.

Fred L. Timberlake, the defendant in error, began an action against one, Louis McCallister, before a justice of the peace of this county, and caused an attachment to issue on the grounds that the defendant was a nonresident. By virtue of this writ the constable attached a horse, the property of the defendant.

A trial was had before the justice, resulting in a judgment in favor of the plaintiff. After the judgment, and within ten days, the defendant, McCallister, filed an appeal bond, with the Citizens Trust and Guaranty Company as surety thereon. This bond was approved by the justice and an appeal was had to the common pleas court. Such proceedings were had on this action in the common pleas court, that judgment was again rendered in favor of the plaintiff and against the defendant. McCallister having failed to pay the judgment, Fred L. Timberlake then brought an action against the Citizens Trust and Guaranty Company on the appeal bond, to recover the amount of the judgment and costs.

The Citizens Trust and Guaranty Company answered, admitting the proceeding and' judgment before the justice, and the execution by it of the appeal bond, the appeal to common pleas court, and the judgment against McCallister in that court, biit alleged that at the time it executed the appeal bond and at the time the appeal] bond was approved by the justice, th^ property of McCallister which had been attached was retained by the constable under the attachment; that after the approval of the appeal bond, and before judgment in the court of common pleas, the plaintiff, Timber-lake,caused the attached property to be released from the attachment, and it was removed by McCallister from this county before the judgment was obtained in the court of common pleas; that the value of the property attached was about $200, sufficient to pay the judgment and costs that Timberlake had recovered against MeCallister.

The answer further alleged that MeCallister was insolvent, and that by reason of these facts it was released from its liability on the appeal bond.

A demurrer was interposed to this answer, which was sustained, ' and defendant not wishing to plead further judgment was rendered against him.

The plaintiff in error prosecutes this action to reverse the judgment of the court of common pleas, for error in sustaining the demurrer to its answer.

It is urged by the plaintiff in error that when the surety is compelled to pay the debt of his principal, that he is entitled to be subrogated to all the rights of the creditor to the property or securities held by him for the payment of the principal debt, and that when the defendant in error discharged the property held under the writ of attachment, he released the plaintiff in error from liability to him on the appeal bond.

This raises the question whether or not the rule that applies to ordinary guarantee contracts of debtors to creditors, applies to securities on appeal bonds.

The provisions of the code for appeals from justices of the peace to the court of pommon pleas are as follows:

Gen. Code 10382. “In all cases, not otherwise specially provided for by law, either party may appeal, from the final judgment of a justice of the peace, to the court of common pleas of the county where the judgment was rendered.

Gen. Code 10383. “Within ten days from the time a justice renders judgment, the party appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs; conditioned, that appellant will prosecute his appeal to effect without unnecessary delay, and that, if on the appeal judgment be rendered against him, he will satisfy it and the costs.”

The effect of an appeal is to vacate the judgment of the justice of the peace, and transfer the case to the court of - common pleas, where the case is again tried de novo. It entirely releases the judgment debtor from liability to the judgment creditor by reason of the judgment of the justice; and the prevailing party before the justice must obtain a judgment in the court of common pleas, before the security on the appeal bond has assumed any legal liability to pay his claim.

In giving an appeal bond there is no privity between the judgment creditor and the security upon the bond. The judgment debtor, within ten days from the rendition of the judgment, enters into a bond with sufficient security to be approved by the justice, conditioned that the appellant will prosecute his appeal without unnecessary delay, and satisfy any judgment and costs that may be obtained against him on appeal.

While the bond is to the adverse party, yet he cannot exercise any right of either accepting or rejecting the securities thereon. The perfection of the appeal is entirely within the power of the appellant and the justice.

The giving of an appeal bond is a statutory provision wholly for the benefit of the losing party, enabling him if he so desires to try his case in the court of common pleas, ' without consulting the wishes of the judgment debtor.

To require the judgment creditor to retain the attachment on the property of the defendant, to await the delays and Uncertainties of the trial in the court of' common pleas, for the protection of the surety on the appeal bond, under the penalty that if he discharges it he would release the surety, would be inequitable and unjust. He is liable to the officers for the care and safe-keeping of the attached property. This, in many instances, would equal or exceed the value of the property attached, and probably would in the case at bar.

In the case of Curtice v Bothamly, 90 Mass. (8 Allen) 336, the syllabus is as follows:

‘ ‘ The surety in a recognizance given to prosecute an appeal from a judgment of a police court is not discharged by the plaintiff’s subsequent release of his attachment upon the writ.”

In commercial transactions, sureties obligate themselves to the creditor for his benefit. It is for the protection of the creditor that the suretyship is created. It is a contract relation between ••the creditor and surety. The creditor has a right to accept or reject the offer of suretyship. ,

“The rights of sureties are'largely creations of equity, and courts of chancery will not hold them liable, where the risk is increased by the act of the party for whose benefit the surety-ship is intended to inure; and, if by the act of the creditor, the surety is injured or exposed to injury, that act may be laid hold of for the surety’s relief.” Day v. Ramey, 40 Ohio St. 449.

But the giving of an appeal bond is not for the benefit of the judgment creditor, but to give the judgment debtor a right to a new trial. If the surety on the appeal bond had refused to interfere, the officers would have sold the attached property and satisfied the judgment; after the giving of that bond, the judgment creditor must obtain a new judgment before he can assert his claim against .the judgment debtor.

In the opinion in Curtice v. Bothamly, supra, the court says:

“He cannot be held as contracting with the surety that he will preserve his attachment, nor can he be regarded as a trustee of the surety to preserve the attached property for his indemnity. The recognizance is- merely an independent security, which the law gives him when his adversary appeals from the judgment which he has obtained, and he is at liberty to waive or release his attachment and rely upon the recognizance in whole or in part, as he may see fit. ”

It would be inequitable to apply the same rule to the release of attached property by judgment creditors in favor of a surety on an appeal bond, that are applied to suretyships which are intended to inure to the benefit of the creditor.

The judgment of the court Below is affirmed.

Norris and Metcalfe, JJ., concur.  