
    Frederick Lang v. L. H. Pike.
    L. recovered a judgment before a justice of the peace against J. P. and S. P.( who jointly appealed the action to the Court of Common Pleas. Pike, as surety on the undertaking in appeal, in the undertaking, says: “I promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs,” etc. In the appellate court L. obtained a judgment against J. P. only. J. P. being insolvent, L. brought this action against Pike, surety on the undertaking in appeal. Held—
    1. A surety, on an undertaking for appeal from the judgment of a justice of the peace, taken in conformity to the statute, where the terms thereof are clear and certain, may stand upon the terms of his undertaking.
    :2. Pike is not liable on his undertaking, as surety, to satisfy a judgment against J. P. only.
    Error to the District Court óf Lucas county.
    In February, 1867, plaintiff, Lang, recovered a judgment in a justice’s court of Lucas county against Joseph Pfeffer .and Sabina Pfeffer for $39.35, and costs of suit. Desiring to appeal the action to the Court of Common Pleas, they jointly procured L. II. Pike, the present defendant, to become their surety on the docket of the justice for appeal, the undertaking is in conformity to the statute, and is as follows:
    ' “ Whereas, on the 12th day of February, 1867, the said Frederick Lang obtained a judgment against the said Joseph .and Sabina Pfeffer, on this docket, for thirty-nine and thirty-live one hundredths dollars and three dollars and fifty cents ■costs, and the said Joseph and Sabina Pfeffer intending to Appeal therefrom'to the Court of Common Pleas of Lucas county; how, therefore, I, L. H. Pike, of Toledo, do hereby, pursuant to the statute in such ease made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding eighty-six dollars. And I do also undertake in said sum that the appellants will prosecute their appeal to effect without unnecessary delay.
    « L. H. Pike.”
    “ Executed and acknowledged before me, and surety approved, this 19th day of February, 1867.
    Otto Reidemeister, J. P.”
    In the appellate court plaintiff' recovered a money judgment against Joseph Pfeffer alone, Sabina was discharged. An execution on this judgment against Joseph Pfeffer was returned indorsed, “ Wholly unsatisfied for want of goods and chattels whereon to levy belonging to said Joseph Pfeffer.” Thereupon, this action was instituted upon the undertaking for appeal. The foregoing facts appear in the petition. To the petition defendant interposed a general demurrer; demurrer overruled, and exception taken to the judgment overruling the demurrer. On leave defendant filed an amended answer; this was demurred to, and demurrer sustained; exception taken to the judgment sustaining this demurrer. The answer admits the execution of the undertaking for the appeal, but denies that by reason of any judgment on the undertaking for appeal defendant became indebted to the plaintiff; it alleges for further defense that prior to the commencement of the action before the justice, Sabina was the wife of Joseph Pfeffer; that she owned real estate in the city of Toledo in her own right, which she and her husband conveyed to plaintiff by deed containing the usual covenants ; that the action was brought to recover taxes claimed to have been paid by plaintiff after conveyance to him, and which wrere alleged to be a lien upon the land when conveyed to plaintiff by Joseph and Sabina, also for a claim held by plaintiff against Joseph alone ; that on the trial judgment was rendered against both for the whole amount of the plaintiff’s claim. From this judgment they jointly appealed, and the undertaking was given on such appeal, etc. Joseph ex. cepted to the judgment rendered against him. Motion by him for new trial; motion overruled, and judgment overruling motion for new trial excepted to. No bill of exceptions. To reverse the several judgments on the demurrers and the final judgment, a petition in error was filed in the Disti'iet Court, in which Pike avers that there is error in said record and proceedings in this, viz. :
    I. That the court erred in overruling the demurrer of this plaintiff to the petition in said action.
    II. That the court erred in sustaining the motion to strike out part of the plaintiff’s answer.
    III. That the court erred in sustaining the demurrer of the second cause of defense in the answer in said cause.
    IV. That the court erred in sustaining the demurrer to the amended answer therein.
    V. That the court erred in rendering a judgment for said Lang, when it should have been in favor of this plaintiff', according to the law of the case.
    VI. That the court erred in overruling the motion for and in refusing to grant a new trial.
    In the District Court the judgment of the Common Pleas was reversed. Lang, the plaintiff' here, as well as in the action below, prosecutes here a petition in error seeking to reverse the judgment of the District Court for the following errors, as he alleges :
    I. Because said District Court erred in reversing the judgment and' decision of the Court of Common Pleas.
    II. Because said District Court erred in rendering judgment against this plaintiff'.
    III. Because said district Court erred in rendering judgment in favor of said defendant.
    IV. Because judgment was rendered by said District Court in favor of said Pike, when it should have been given in favor of this plaintiff, defendant below, according to the law of the land.
    
      Ritchie, Howe § Ritchie, for plaintiff in error:
    The surety in this ease was liable. Emerick v. Armstrong, 1 Ohio, 513; 1 Wend. 90; Ewers v. Rutledge, 4 Ohio St. 210; Secrest et al. v. Barbee & Royston, 17 Ohio St. 425; Bentley et al. v. Dorcas et al., 11 Ohio St. 398; Hood v. Ma
      
      this, 21 Mo. (6 Bennett) 308; 4 Abb. (N. Y.), App. Dec. 172; 3 Keyes, 636; 17 How. 394; 24 How. 467; Cass v. Adams, 3 Ohio, 223; 11 Ohio St. 408; 1 Ohio, 172.
    
      Pike 8f Hall, for defendant in error :
    The liability of a surety is never to be extended beyond the strictest letter of the obligation in which they have entered. State v. Cutting, 2 Ohio St. 1; McGovney v. The State, 20 Ohio, 90, and cases cited; State v. Corey, 16 Ohio St. 17; Oakley v. Aspinwall, 4 Comstock, 514; Chase v. Reis, 10 Cal. 517.
    "We insist, therefore, thafit is bad logic and worse law, that in a joint appeal from a joint judgment, rendered in a joint action, the surety, in the appeal from that judgment only, can be made liable for a several judgment against ■one alone in a several action, and on a several cause of action, where it is admitted that but one could possibly be made liable.
   Ashburn, J.

The record in this case presents but a single question for the decision of the court, namely: Where there is a joint judgment against two defendants, and both appeal to the Court of Common Pleas, and in that court judgment is rendered against one of the defendants only, is the surety of both, on the undertaking for appeal, liable for the payment of such judgment ?

The District Court answered this question in the negative, and, we think, correctly. No principle is more firmly .settled in this state than this, that sureties may stand on the very terms of a statutory bond or undertaking. So ■clearly has this doctrine been announced and acted upon, that it maybe regarded as entering into the condition of such an undertaking, that it will not be extended by the courts beyond the necessary import of the words used. It will not be implied that the surety has undertaken to do more, ■or other, than what is expressed in such obligation. In our judgment, it would not be wise, by reason of anything we find in this undertaking, or the facts as shown by the record, to make innovation upon this recognized rule of the law. When applied, in some cases, the rule may appear harsh or even defective, yet it will be more conducive to the general welfare to follow its lead than to unsettle the rule.

This undertaking reads : “Now, therefore, I,L. H. Pike, of Toledo, do hereby, pursuant to the statute in such ease made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment,” etc. The record shows that Joseph and Sabina Pfeifer appealed jointly from a judgment rendered against them jointly; and Pike promised and undertook if suck a judgment was rendered against them in the appellate court, he would pay suck judgment if tkey failed to do so. The length and breadth of his promise in the undertaking on appeal was that he would pay any judgment rendered against both of them— not separately, but jointly. He can not, then, be held for the separate default of Joseph. To hold differently would be enlarging the terms and changing the conditions of the undertaking, thereby virtually making, by construction, a new undertaking for the parties, and holding Pike responsible for conditions not in his contract.

In the language of eminent judges of our own state,. “ the liability of a surety in an undertaking is not to be extended by implication beyond the terms of his contract.” And while “ it has been the uniform object of our courts to support bonds executed under the provisions of the law, where, by a reasonable interpretation, such bonds can be made to meet the intention for which they were required to be taken,” yet, in all cases where interpretation becomes necessary, the “ undertaking is to receive a strict interpretation, and not to be extended beyond the fair scope-of its terms.”

In cases where the terms of the undertaking are so explicit that interpretation is not required, courts will not undertake to render that more clear to the mind which is-already positively clear to the understanding. In a judicial sense, the office of interpretation is to make plain that which is not obvious. "Where, however, the conditions of the undertaking, as in this ease, are obvious, no work of interpretation is required. Here the work of the jurist is to apply the undertaking to its proper subject-matter, and then let it speak for itself. Thus applied, it plainly says : Pike will pay any joint judgment rendered in the appellate court — auy such judgment as shall be rendered there against Joseph and Sabina Pfeifer, but not one that shall be rendered against either alone.

The purpose of the condition in the undertaking is to define and limit the liability of the surety in case of the default of the principal obligor. And when so defined and limited, the surety may demand that he stand upon the words of the undertaking. I will adopt as my own the comprehensive language of Judge Read in the case of the State v. Medary, 17 Ohio, 565 : “ The bond speaks for itself, and the law is that it shall so speak, and that the liability of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can. There is no construction, no equity against sureties. If a bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way in order that it may prevail.” This doctrine applies as well to statutory undertakings as it does to bonds. Pike undertook to respond to-a joint judgment in the appellate court, and to no other, on default of Joseph Pfeifer and Sabina Pfeifer doing so.

It is thought by "a member of the court that the ruling in the case of Bently et al. v. Dorcas et al., 11 Ohio St. 398, is in conflict with our holding in this case. We think not. The facts in the respective cases are such that each may rest upon its own merits. The case in 11 Ohio St. was a joirit and several bond, with a condition joint in form, given on an appeal from a decree in chancery involving a trust fund. The condition was that if Lake, Bently, Barkly, and Bushnell shall pay the full amount of the condemnation in the District Court, and costs in case, a decree shall be .rendered therein in favor oí the appellees,” etc. They made themselves jointly responsible to pay any decree in favor of the appellees, and the court in holding them all liable simply required them to stand upon the terms of their bond — the court gave the bond application in accordance with its express condition and legal scope. The undertaking we have under consideration is not conditioned, as that was, to pay a judgment in favor of appellees, but to pay any judgment that should be adjudged against appellants.

It is thought the rulings in 3 Keys (N. Y.) 636 ; 17 How. Pr. 394, and 24 Ib. 467, are in conflict with the ruling in this case. The decisions in these cases are made upon the terms of the New York statute providing for appeal and stay of execution provided for in the same undertaking, and that statute is essentially different in its phraseology from our statute providing the terms and conditions of an undertaking for an appeal. They are, touching the question under consideration, giving construction to section 335 of the New York code, which reads : “If the appeal, be from a judgment directing the payment of money, it shall not stay the execution of the judgment unless a written undertaking be executed on the part of the appellant by at least two sureties to the effect that the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part.”

This section is construed by the New York courts, and in 17 Howard the court, by Brown, J., says : “ The part of the judgment referred to in section 335 of the code and in the written undertaking is not limited to the money which is the subject of the recovery. The thing to be recovered, whether money or other personal property, is a part of the judgment, and so are the person-or persons from whom it is recovered. Both the money adjudged to the plaintiff', and the person or persons who are.adjudge.d to pay.it are material and essential parts of the judgment; and a judgment is affirmed in fart and reversed in fart when it is affirmed as to one and reversed as to the other.”

Such a construction is consistent with the peculiar terms of the New York statute above quoted, and the conditions of the undertakings for appeal had in virtue of it. But the terms of our statute are so unlike the New York statute, that a decision construing the one can afford no direction in construing the other. Upon our examination of these cases, we find nothing that militates against the conclusion we have arrived at.

Judgment of the District Court affirmed.

Scott, Chief Judge, Day, and Wright, JJ., concurred.

Johnson, J.

I am unable to concur in the opinion just announced.

The undertaking for an appeal is conditioned “ that the said affellants, if judgment shall be adjudged against them on the appeal, will satisfy said judgment and costs.”

The judgment below was against two defendants, each desired to appeal, and the defendant in this case, reciting this desire and intention of both, entered himself as surety for both.

On the trial on appeal one defendant was discharged, and the judgment on the same cause of action was rendered against the co-defendant. This judgment of the appellate court settles conclusively the fact that the action appealed was in its nature joint and several, and not joint. If we look to the second answer herein, we find that such was actually the fact. As it was a joint or several demand, it admitted of several defenses, and either party could have appealed leaving the judgment to stand as to the other; and even if the demand were joint and the appeal of one vacated the judgment as to both, it was held in Ewers v. Rutledge, 4 Ohio St. 210, that one or more defendants against whom jointly a judgment had been rendered, may appeal, and his bond need not cover the defaults of his co-defendant. The judgment as it stood was upon its face, and so far as the record shows, one for which either or both were liable. Execution could have been levied upon joint or several property to satisfy it. The bond recites the intention of each to appeal from this judgment. The surety undertakes for both. He obligates himself, “ pursuant to the statute in such cases made and provided,” that the appellants — that is, each of them — as each could act separately, or might join in prosecuting the appeal, will satisfy the judgment that may be recovered. 'He thus interposed and enabled each to have a retrial of the case.

In determining the nature and legal effect of this undertaking, which is purely statutory, we must look to the statute which authorizes its execution and prescribes the object, as well as to the nature of the demand. Secrest v. Barbee & Royston, 17 Ohio St. 427.

The statute speaks of the appellant in the singular number. If there are several appealing, the undertaking must be for all, unless the claim or defense is joint only. 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 plaintiff to recover against either — it would, to that extent, inure to the benefit of both. Ibid, 17 Ohio St. 427.

This defendant undertook for each defendant, not on a joint, but a joint and several claim, which proved to be several only, on final trial.

He knew, or is presumed to know, the law — that they might have filed separate appeals, or that he was not bound to undertake for both. As the greater includes the less, he has no right to complain now, because his liability is less than he undertook to guaranty. The indorser of a joint and several note is not discharged by the discharge of one of the makers, and why should the guarantor of two defendants for an appeal.

His undertaking was “ pursuant to the statute.” The statute directs that, on the appeal, the appellate court shall try and determine the ease by the same rules of law as if originally brought in that court. He undertakes to make good any judgment the law and the facts warrant, against one or all appellants. He contracts with reference to the-nature of the case, and the power and duty .of the court to make such judgment against one or both, as the law demands.

To hold that this surety is discharged because the judgment is not against both, after he has arrested the right of the plaintiff to collect as to either, seems to me, a narrow and technical construction of the statute, not required by its words nor the obvious intention of the legislature.

Such construction tends to defeat rather than promote-the administration of justice.

It is conceded that a surety may rely on the precise words of his bond, and that in construction of his contract there are no equities; but it is not conceded that words and terms used in his contract have any different legal signification than those in the contract of his principal.

It is a mistake to assume that there is a special set of rules, strict and technical in their nature, by which words, phrases, and covenants of a surety have a different meaning than when used by others in a contract.

The construction to be put on a contract is the same in both cases. While nothing is implied against a surety, and he has a right to stand on the words of his bond, yet his contract, as expressed, means the same in legal contemplation as if he were a principal, and not a surety.

But this question can hardly be regarded as an open one-in Ohio.

The Supreme Court, in Bentley v. Dorcas, 11 Ohio St. 398, has settled the proper construction to be given such a contract.

In this case, there was a judgment against several defendants, who jointly appealed, and, in the District Court, judgment rendered against one only of appellants. This was an action against the sureties on the appeal bond. The-sureties answered that the original judgment was against one, Lake, as principal, the other defendants being sued as his sureties ; that they (the present defendants) were sureties for the co-defendants of Lake, but not for him, who was insolvent. The court say: “ The judgment in the District Court is against part only. We think the sureties ■on the bond given by all are the sureties of all, and bound for the default of all. By the terms of the bond, they are ■sureties equally for all; and all, by uniting in the bond, must be regarded as bound for each other.” It is claimed that, in that case, the words of the.bond did not, as in this •case, bind the surety only for a judgment against them, but to pay the amount of a judgment “ in favor of the appellee.”

The court place their decision on no such narrow ground. The bond, though informal, was held to be substantially a good bond under the statute; and, so regarding it, the court considered the legal relations that sureties and other co-obligors occupied to a judgment against one only of the appellants.

Burrell v. Vanderbilt, 1 Bos. 637, was an action against sureties for four defendants on an appeal bond. One only ■of appellants prosecuted his appeal, the others having abandoned it, and j udgment was rendered against him.

As in this case, the sureties undertook “that if appellants will pay all costs and damages . . . against them,” and “ if the judgment, or any part thereof, shall be affirmed, the appellants will pay,” etc.

The defense was the same as the case at bar, but the court held it insufficient.

So, in Secors v. Morgan, 3 Keyes, 636, the same question arose. The court say: although the judgment is joint in form, yet, as the action permitted separate defenses, and both appeal, “ it is, in effect, several by each defendant, and it would be perfectly correct for each defendant to have brought a separate appeal, though not irregular for them to join in the appeal, and procure a single undertaking. But the proper construction of the undertaking is that the sureties undertake for each of the defendants. The appeal was, in effect, several by each defendant, and the undertaking should be construed in connection with the judgment.”

It is claimed that these decisions from New York are based on the terms of their civil code.

Such is not the fact, as appears from the language already quoted. In their statute, as in ours, the obligors and obligees on the bond are spoken of in the same manner. The undertakings are for the appellants jointly, as in this case, but in other respects the apneal bond is somewhat differently worded.

Hood v. Mathis and Sally, 21 Mo. 308, is on all fours with the case at bar. The Missouri statute was substantially the same as ours as to the obligation of the surety for appeal, the condition being “ that the appellant will prosecute his appeal with diligence to a decision, and that if on such appeal judgment be affirmed, or upon trial anew in the Circuit Court the judgment be rendered against him.”

The statute prescribed a form of bond in these words: “If judgment be given against appellant,” etc.

In that ease, the bond was conditioned, “ if the judgment of the justice be affirmed, or if on trial anew in the Circuit Court judgment be given against appellants.” The bond in that case, as in this, used the plural instead of the singular in describing the parties appealing. Judgment was rendered on appeal against one of appellants and in favor of the other, which was relied on to discharge the surety. The court held he was liable, and say: “ To hold otherwise would be a very narrow construction of the statute, required neither by the words of the. statute nor the obvious intention of the legislature, a-nd tending rather to defeat than to promote the administration of justice.”

A careful examination of the Missouri statute, and the undertaking given in that case, show there is no essential difference between that case and this.

Kipling v. Turner, 5 B. & A., was an action of debt on a bond. The bond, after reciting that A., B., and C. had filed a bill in equity against R. M. and J. S., states the condition to be that the obligor “ would pay all costs, as the ■court of chancery should award to the defendants on the hearing of the cause.”

It was held by Bayley, Holroyd, and Best, JJ., that the death of one of the defendants before any costs awarded -could not be pleaded in discharge of the bond. Bayley, J., .said: “This bond is not conditioned to such costs as the -court of equity shall award to R. M. and J. S. by name, but to pay such costs as shall be awarded by the court to those, who, at the time, fill the character of defendants in -equity.”

Holroyd, J., said: “ It appears that here there were three persons filling the character of plaintiffs, and two that of defendants in equity, and the intention appears to me plainly to have been, that whatever costs the plaintiffs in equity were compelled to pay should be paid by this defendant. To show that in construing such a bond the courts •do not adhere to the words of the bond alone, but look to the nature of the case, state of the pleadings,” etc., Secrest v. Barbee & Royston, already cited, is in point.

There the undertaking recited a judgment against two, .and demand for second trial by both, and the condition was that the defendants, both of whom were named, “shall abide and perform the order of the court against them, and ■shall pay all moneys, costs, and damages against them.” ■

The fact was, one was in default, and not entitled to a second trial, but the whole case was placed on second trial ■docket, and on retrial of the issue made by the other defendant, he recovered a judgment for costs, and judgment was rendered against his co-defendant, as on the first trial. The court held that, although literally this purported to be an undertaking for both defendants, yet looking at the issue, and the statute on the subject, its legal effect was to bind the makers for the default of the one only entitled to a second trial. It follows from this that if both had been •entitled to a second trial, and the same judgment rendered, the surety would not have been discharged.

II. The second answer sets up a3 a fact that one of these defendants was the wife of the other, and hence the judgment against her was void.

This is a plea of matter going to the validity of the judgment appealed ■from. The surety can not now retry that case in this action against him.

It does not appear that that fact was known to the justice. In any event, a judgment against her was not necessarily void, in any such sense as that she could not appeal from it.

But if it was, then this undertaking was for the husband alone, who could appeal; and, by the authority of Secrest v. Barbee & Royston, its legal effect was to bind the maker for the default of the one only who was authorized to appeal.

Again, one of the conditions of the bond was this: “And I do also undertake in said sum that the appellants will prosecute their appeal to effect without unnecessary delay.”

As the appellants could make defense jointly or severally, as they chose, according to the facts relied on by them to defeat the action, this was not an undertaking that they should prosecute their appeal jointly, but by the use of such defenses, jointly or severally, as they or either of them possessed.

Again, he undertook they should prosecute it to effect; that is, the appellants should both make a successful prosecution.

If one should make no defense in the appellate court, and the other should make a successful one, the reasoning of the majority would be that the surety would not be liable, although he bound himself that both would prosecute the appeal. Surely this can not be.

As this is a practical question of considerable importance, I have ventured to record my dissent from what I think is clearly erroneous.  