
    Wile et al. v. Koch.
    
      Practice — Suit on surety bond in appellate court — Competent to identify name omitted on bond — Failure to state sum does not relieve surety.
    1. In a suit to recover against the surety on an appeal bond the amount of the judgment rendered in the appellate court, it is competent by averment in the petition to identify the appellant whose name was omitted from such bond.
    2. The failure to state in such bond a sum which the surety’s liability shall not exceed will not relieve him from the stipulation that the appellant shall satisfy the judgment which may be rendered against him by the appellate court.
    (Decided May 26, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    The original action was tried before a justice of the peace and appealed to the court of common pleas, where the plaintiffs in error filed a petition alleging, in substance, that on November 9, 1889, they recovered a judgment against the Nathan Importing Company before Levi P. Bauder, a justice of. the peace; that said company desiring to take an appeal, the defendant Koch executed his bond for that purpose, that the appeal having been perfected, the plaintiffs recovered a judgment in the common pleas against Charles Nathan, doing business as the Nathan Importing Company, and that an execution issued upon the judgment was returned unsatisfied, and that the judgment is unpaid.
    
      The following is a copy of the bond upon which ' the plaintiffs counted:
    “Whereas, on the 9th day of November, 1889, the said Julius Wile and brother obtained a judgment against the said Nathan Importing Company on the docket of Levi F. Bauder, justice of the peace, for sixtv-six and 5-100 dollars damages, and for ten and 80-100 dollars costs of suit, and 'the said --intend to appeal therefrom to the court of common pleas of the county aforesaid:
    “Now, therefore, I, Moses-Koch, of Cuyahoga county, Ohio, do hereby, pursuant to the statute in such case made aud orovided,' promise and undertake that the said appellant-, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding the sum of-dollars, and I do also undertake, in said last mentioned sum, that the said appellant ■ — - will prosecute - appeal to effect and without necessary delay.
    “Moses Koch, “Bail for Appeal.
    “Executed and acknowledged before me, and surety approved, this 9th day of November, A. D. 1889.
    “Levi F. Bauder, “Justice of the Peace.”
    In the court of common pleas a demurrer to the petition was sustained and a final judgment rendered against the plaintiffs in error which was affirmed by the circuit court.
    
      
      White, Johnson c& McOaslin, for plaintiffs in error.
    
      Emil Joseph, for defendant in error.
   By the Court.

Two propositions are urged in support of the judgments below:

1. That the surety is entitled to stand upon the letter of his obligation and that, the bond being blank as to the limit of his liability and as to the name of the appellant, it is, as to him, void.

2. That the petition shows that the original suit before the justice was against the Nathan Importing Company and the judgment recovered on appeal was against Charles Nathan doing business as the Nathan Importing Company.

Neither proposition will sustain the judgment. Though it is true that the surety is not to be held beyond the terms of his obligation, the terms of his obligation are found in the stipulation that he did “promise and undertake that the said appellant, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs. ’ ’

The obligation thus expressly assumed is not defeated by the failure to insert a sum which his liability should not exceed. It was competent to identify the appellant by averment in the petition and by evidence if the averment should be denied. This would in no degree enlarge the surety’s express obligation to pay the judgment.

Judgments of the circuit and common pleas courts reversed, and cause remanded to the court of common fleas with instructions to overrule the demv/rrer,  