White v. McKinley , 10 Ky. Op. 526 ( 1880 )

Opinion by

Judge Cofer :

The surety in the appeal bond covenanted to satisfy and perform the judgment in case it should be affirmed on the appeal. That particular appeal was dismissed and the judgment Was affirmed on a subsequent appeal.

In Harrison v. Bank of Kentucky, 3 J. J. Marsh. 376, the bond sued on was conditioned to pay, etc., “in case said judgment shall be affirmed in said Court of Appeals.” The appeal was dismissed for want of prosecution, and in an action on the bond this court held the dismission was a virtual affirmance and sustained a judgment against the sureties.

Rtissell & Arritt, for appellant. Belden & Shuck, for appellees.

What the effect would have been in this case if the judgment had been reversed on the second appeal we need not inquire. But the judgment having been affirmed the case supra must be deemed conclusive of this case.

Judgment reversed and cause remanded with directions to sustain the demurrer to the answer.