
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    ISAAC J. MILLER AND GUSTAV TAFEL, TRUSTEES, v. MICHAEL RYAN AND RICHARD RYAN.
    
      Appeal bond — Liability of sureties.
    
    Where the undertaking of the sureties on an appeal bond from the probate court is to abide the judgment of the appellate court, —in this instance the court of common pleas — but the judgment of the common pleas is reversed by the circuit court, and by consent of the parties — not the sureties — another and different judgment was entered by that court, there is no judgment of the common pleas, and the sureties on the appeal bond are not liable.
    
      Error to the Court of Common Pleas of Hamilton county.
    This was an action for recovery of $7,500 from the defendants on an appeal bond executed by John B..Mannix, assignee of J. B. and Edward Purcell. The appeal was from the judgment of the probate court, which was, June 2, 18S6, rendered against Mannix for $y05,827.70. The obligation of the bond was that “the said John B. Mannix shall abide the order, judgment or decree of the appellate court,” etc. The appeal was to the common pleas where the judgment was reduced to $285,227.58. The case was then taken on error to the circuit court where the judgment of the court of common pleas was reversed, and judgment rendered against Mannix for $189,975.83, which the Supreme Court affirmed. Then came the present suit on the appeal bond. The hearing below was before Judge Kumler, who sustained a demurrer to the answer.
   Swing, J.

We are of the opinion that this case comes within the rule laid down in the case of Meyers et al. v. Parker, 16 Ohio St., 501.

The liability of the sureties on the bund in this case was to abide the judgment of the appellate court, to-wit, the court of common pleas. There is no judgment of the court of common pleas; hence they are not liable.

The judgment of the court of common pleas was reversed by the circuit court, and by consent of the parties to the action — not the sureties — that court rendered another and different judgment. The sureties did not agree to be liable for the separate and distinct judgment of the circuit court, but they did agree to be liable for the satisfaction of the judgment of the court of common pleas.

When the judgment of the court of common pleas was reversed and held for naught, their obligation on that judgment ceased. The judgment of the court of common pleas is therefore affirmed.

S. A. Miller and Gustav Tafel, for Plaintiffs in Error.

Harmon, Colston, Goldsmith & Hoadly and Thos. Mo-Dong all, for Defendants in Error.  