Baker v. Morath

40 Ohio St. (N.S.) 157

Opinion

Nash, J.

June 9fch, 1871, one Dojph with Michael Morath as surety gave a second trial bond in the-court of common pleas of Licking county as provided by section 691, of the Code of Civil Procedure (2 S. & C., 1155,) in a ease in which Wm. Baker had recovered a judgment against Dolph for the sum of $1,828.90. Upon a second trial Baker recovered a judgment against Dolph for $1,992.30. In January, 1878, Baker recovered a judgment against Morath upon the second trial bond above referred to. The district court reversed the judgment of the court of common pleas chiefly on the ground that the second trial bond did not sufficiently describe the original judgment of Baker against Morath. It is claimed that the amount of the judgment obtained at the first trial, is not correctly stated in the second trial bond. The condition of the second trial bond was not that the judgment in the first trial should be paid, but that the party obtaining the second trial should abide and perform the order and judgment of the court, yet to be rendered. If this be true, Morath had no interest in the amount of the judgment rendered in the first trial. It was mentioned in the second trial bond, with other things, for the purpose of identifying the case. Statements were made in the bond of such character as identified the case in which the second trial bond was given, and it was immaterial whether the amount of the judgment in the first trial was correctly stated or not.

Judgment reversed.