L. Kimball Printing Co. v. Southern Land Improvement Co. ( 1894 )

Collins, J.

The bond to be construed in this action was conditioned as required by 1878 G. S. ch. 86, § 10, and to the prescribed statutory conditions there was added the following: “And pay the amount, if any, which shall be finally recovered in said Municipal Court against defendant after decision of said Supreme Court.” The appeal from an order denying defendants’ motion for a new trial, referred to in the bond, was dismissed on motion of respondent plaintiff, for failure of appellant to serve his paper book and points and authorities. Rules XI and XIV of this court. The cause having been remitted, judgment was entered in the Municipal Court for the amount demanded in the complaint. From that judgment no appeal was taken, and it stands as originally entered.

The question now presented is as to the liability of the sureties upon the bond for the full amount of the judgment in the Municipal Court. On the trial of the present action the court held that the liability of the sureties arising out of the extra-statutory condition above quoted was simply for the amount of the judgment entered in this court on the order of dismissal. The controlling words used and to be construed are, “after decision of the Supreme Court,” and, of course, as against these sureties, they are to'be construed with reasonable strictness. It is contended by the -appellant that a dismissal under the rules is a decision within their meaning, but we think not, as did the court below. Certainly there was no decision upon the merits. Every question which could have been presented on that appeal might have been raised subsequently on an appeal from the judgment.

Upon an appeal to this court it may, under the statute 1878 G. S. ch. 86, § 5, reverse, affirm, or modify the judgment or order appealed from, and in either case the merits are determined and a decision reached. It has no statutory power to dismiss, except as provided in section 7. For the proper and orderly transaction of its business the rules under which the appeal in question was disposed of were adopted, and, when there is a failure to comply with them, the court may dismiss. If it abides by the rule and dismisses, or if, upon the other hand, it waives or excuses the noncompliance, there is no adjudication of the questions involved, no decision within the ordinary meaning of the word; nothing is determined or decided but tbe motion to dismiss. Let us suppose that, pending litigation, the parties to an action formally stipulate that it shall abide and be governed by the decision of the appellate court upon questions of the same nature to be presented in another action already pending upon appeal, and because of a failure to comply with the provisions of 1878 G. S. ch. 86, § 7, or to observe the rules, that appeal is dismissed. It could not well be contended that the parties to the stipulation would be barred from asserting that there had been no decision within the meaning of the stipulation.

Again, under the rules of this court, the respondent on the former appeal was not confined to mere dismissal. It could have obtained an affirmance of the order appealed from, and, had such a course been pursued, all questions which could have been raised on that appeal would have been foreclosed. None of them could have been presented on an appeal from the judgment, affirmance under the rules being equivalent in such a case to a decision on the merits. In view of these rules, and the ordinary meaning of the word “decision” as used in legal instruments and proceedings, we are of the opinion that solely by virtue of the extra condition found in the bond, the plaintiff was not entitled to recover the amount of the judgment entered in the Municipal Court.

The amount recovered in the pending action was a trifle over $20, and, on taxation of costs and disbursements, plaintiff was allowed $10 as statutory costs. But, on appeal, this item was rejected. In Greenman v. Smith, (1874) 20 Minn. 418 (Gil. 370,) it was held that, under similar circumstances, a plaintiff was entitled to statutory costs, and in Potter v. Mellen, (1886) 36 Minn. 122, (30 N. W. 438,) it was assumed that the statute regulating costs had been rightly construed in the Greenman Case. Whatever our views might be, was this an entirely new question, we need not now indicate. But, evidently the people of the state have been satisfed with the statute respecting costs, as construed in the Greenman Case, for no legislative change or amendment has been made. After more than twenty years of acquiescence in this view of the statute by those most interested, we do not believe that we ought to place a wholly different construction upon it. To the amount of the judgment below there must be added the sum of $10 as statutory costs, but no costs will be allowed in this court.

The case is remanded with instructions to amend the judgment appealed from as above indicated.

Buck, J., absent, took no part.