
    George Helt v. Charles H. Whittier.
    Judgment was rendered against one of the makers of a promissory note, who appealed to the court of common pleas, where the plaintiff again . recovered. The undertaking of the surety was to pay any judgment rendered against the appellant—Held: That the surety is liable, notwithstanding another maker of the note was made a party in the appelate court, and judgment was rendered against both makers.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Yan Wert county.
    Hiram E. Smith and James H. Ward executed a promissory note, in which they jointly and severally agreed to pay George Helt one hundred dollars. In an action prosecuted thereon against Ward, before a mayor in that county, Helt recovered judgment for the amount of the-note and costs. Ward appealed to the court of common pleas, and Whittier became bail for the appeal. This is the-condition in his undertaking: “ That said appellant shall duly prosecute his appeal to effect, without unnecessary delay, and if judgment be awarded against said appellant, I will satisfy said judgment, with interest and costs and costs that may .accrue.”
    In the court- of common pleas Smith was, on application-of Ward, made a party defendant and they answered separately. On the trial, judgment was rendered against both of them, in favor of Helt, for $165 and costs. It appearing-that neither Smith nor Ward had any property subject to-levy, suit was brought by Helt against Whittier on the-undertaking for appeal. Whittier demurred to the petition containing the foregoing facts, on the ground that a judgment against Ward and Smith was not within the terms of the undertaking. In the court of common pleas the demurrer was sustained and the petition was dismissed, and the district court affirmed the judgment. Helt seeks in this court to reverse the judgment of both courts.
    
      John King, for plaintiff in error,
    cited 1 Ohio, 170; 4 Ohio St. 210; 11 Ohio St. 398; 17 Ohio St. 426.
    
      W. J. Beers, for defendant in error,
    cited 17 Ohio, 554; 20 Ohio, 93; 2 Ohio St. 1-6; 6 Ohio St., 501-503; 9 Ohio St. 17-22; 27 Ohio St. 498.
   Okey, J.

Language has sometimes been employed from which it might be inferred that the contract of a surety is to be construed as strictly as a statute highly penal, or one providing for a forfeiture. That such a view is erroneous admits of no doubt. Suit may be maintained against a surety, when his liability is shown to be within the terms of his agreement; and the contract must be construed in connection with the statutes, if any, relating to the same matter. Here, the statute authorized the court to make Smith a party to the action. Justices’ Code, secs. 56, 115; Civil Code, sec. 137. He was made a party.on motion of the appellant. Making a new party could not harm, but might relieve the surety for the appeal. "Why does not the case made in the petition show the liability of Whittier, within the strict rule on the subject ?

There is no analogy between this case and one in which a surety has guaranteed the performance of a duty, or the payment of money, by a firm, and the firm has been changed before default is made. There, ordinarily, without assent of the surety, the default is not within the guaranty, even if the firm name remains unchanged, but here the default is in legal effect, as well as in terms, embraced by the undertaking. The liability of the surety is neither more nor less, nor different, bjr reason of the rendition of the judgment against Smith. While it is true that he did not agree to answer for the default of Smith, it is also true there is no attempt to charge him for Smith’s default. He agreed to answer for the default of Ward, and there is no attempt to charge him for the default of any other person.

Long v. Pike, 27 Ohio St. 498, is said to be, in principle, like this case. Whether this court would be willing to follow that decision, I am not prepared to say. We do not think it is in conflict with our conclusion here, which is to order the

Motion granted, judgment reversed, demurrer overruled, and cause remanded for further proceedings.  