Cain v. Williams , 16 Nev. 426 ( 1882 )

By the Court,

Belknap, J.:

In the year 1873 one Sylvanus, Buckley brought an action of claim and delivery of personal property against Armenia Buckley as administratrix of the estate of Henry A. Buckley, deceased. He afterwards obtained the possession of the property by complying with the provisions of chapter II of the civil practice act.

Defendant’s intestate, Frank Covington, is a surety upon the undertaking given to the sheriff for the return of the property to the defendant, in case such a return should be adjudged.

Judgment passed against the plaintiff, in the suit of Buckley v. Buckley, and the judgment being unsatisfied, the plaintiff in this action, who has succeeded Armenia Buckley in the administration of the estate of Henry A. Buckley, has sued to recover the amount for which Covington, in his lifetime, became liable on the undertaking.

Plaintiff recovered judgment. ' Defendant appeals.

From the time of the commencement of 'this action down to the entry of judgment the case of Buckley v. Buckley was pending upon appeal in the supreme court. No undertaking to stay execution had been filed.

Defendant contends that the pendency of the appeal suspended the operation of that judgment, and that the court erred in permitting it to be used as the basis of the judgment in this case.

The effect of an appeal under analogous facts was considered by this court in the case of Rogers v. Hatch, 8 Nev. 35. In deciding the question we will adopt, as our predecessors did in that case, the language employed in Bank of North America v. Wheeler, 28 Ct. 433: “If the appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors which may have intervened in the trial of the case in the court below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and that court has no other powers or duties than to affirm, reverse, or modify that judgment, or remit the case to the inferior tribunal that it may conform its judgment to that of the appellate tribunal, then such appeal * * * does not vacate or suspend the judgment appealed from; and the removal of the case to the appellate' court would no more bar an action upon the judgment than the pendency of a writ of error at common law, when that was the proper mode of correcting errors which may have occurred in the inferior tribunal. That such an action would not be bound by the pendency of such a proceeding is well settled. The judgment below is only voidable, and stands good until set aside.” (See, also, Taylor v. Shew, 39 Cal. 536; Scott v. Pilkington, 110 Eng. Com. Law, 11; Freeman on Judgments, sec. 328.)

The other objection is to the amount of the judgment rendered against defendant. The court found that the defendant in the suit of Buckley v. Buckley, plaintiff here, was damaged by the failure of the plaintiff in that suit to return tlie property, in the sum of eleven thousand and thirty-four dollars and forty-four cents.

Four of the sureties upon the undertaking, who were liable thereon in the aggregate amount of ten thousand two hundred and fifty dollars, were compromised with and released upon the payment of three thousand four hundred and sixteen dollars, and satisfaction as against them acknowledged. Because the plaintiff has made this acknowledgment of satisfaction, it is claimed that the amount now recoverable upon the undertaking is the difference between the amount of damages sustained by plaintiff and the aggregate ' amount for which the four sureties were liable, to wit, the sum of seven hundred and eighty-four dollars and forty-four cents.

But the position is untenable. Plaintiff properly deducted from the amount of his damages the amount paid by the four sureties. The remainder is recoverable from the defendant to the extent of his liability.

The question whether the release of the four sureties operated as a release of the defendant can not be considered upon this appeal, because not made in the court below.

Judgment affirmed.

Petition for rehearing denied.'