Burrall v. Vanderbilt

6 Abb. Pr. 70, 1 Bosw. 637

Opinion

By the Court.

Footnotes

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Pierrepont, J. It is claimed by the defendants’ counsel, that because some of the defendants abandoned the appeal, the condition of the undertaking was not broken.

Section 282 of the Code provides that “ whenever an appeal shall have been perfected, the.court in which the judgment has been recovered” may, on special motion, after notice to the person owning the judgment, “ in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is secured on appeal, and thereafter it shall cease, during the pendency of the appeal,- to be a lien on the real property of the judgment debtor, as against purchasers and mortgagees in good faith.”

If the condition of the undertaking is not broken, for the reason that a part of the defendants abandoned the appeal before the judgment was affirmed, then all, save one surety, might abandon the appeal after the real estate of the debtor had been released by virtue of the undertaking; and thus the Legislature would have contrived an ingenious method by which a judgment debtor might clear his real estate of the lien of the judgment, sell the estate, and his sureties be released from all liability. We think this objection is not well taken.

The second objection made by the defendant is, that the plaintiffpermitted the judgment debtor to have entered on the docket the words “ secured by appeal,” without any notice to the sureties.

The entry was made in obedience to an order of the judge, which was granted upon application of the attorney of the said DeGroot, who had obtained the consent of the plaintiff’s attorneys that such order be made; neither the plaintiff nor the sureties having had any personal knowledge of the consent to the order. Though it would be highly proper to give notice to the sureties, and the judge might perhaps refuse to grant such order without notice to them, yet the statute does not require it. It only requires notice to the person “ owning the judgment?

When sureties join in an undertaking, they are presumed to know the legal effects of their act, and that one of those effects will probably be to release the real estate of the debtor from the lien of the judgment. In most instances that is one of the very objects for which the undertaking is executed. The plaintiff has done nothing of which the defendant can reasonably complain.

The defendant’s next objection is, that the judgment debtor has appealed to the Court of Appeals from the judgment of this court, and perfected his appeal.

It appears from the case that this action was commenced on April 26,1856, and that the appeal was taken on the 9th of June following, and that the notice of appeal was served simultaneously with the answer.

At the commencement of this suit the plaintiff’s cause of action was complete. If the appeal constitutes a defence, it has arisen subsequent to the commencement of the action.

The Code (§ 339), like the Revised Satutes (2 Rev. Stats., 607), declares that a perfected appeal shall “ stay all further proceedings in the court below, upon the judgment appealed from, or the matter contained therein” (except in certain special cases). The provisions of the Code in relation to appeals are the same as those of the Revised Statutes relating to appeals from orders and decrees of the Court of Chancery.

In Burr v. Burr (10 Paige, 169), the chancellor held that an appeal perfected after execution levied, did not stay the sheriff from proceeding on the execution, and terms were imposed as a condition to the order staying proceedings ; affirming the same construction previously given by him in the case of Clark v. Clark (7 Paige, 607).

In Cook v. Dickerson (1 Duer, 679), this court held that a perfected appeal under the Code, did not of itself stay an execution previously levied.

But the case before us is not a proceeding in the court below upon the judgment, nor upon a matter contained therein. The suit upon the undertaking might have been brought in any court of competent jurisdiction as well as in the court where the judgment had been affirmed. The case of Thompson v. Blanchard (2 Comst., 562) differs widely from the one now under consideration, both in its facts and in the principles involved therein.

The only question which this appeal brings before us is one of law ; and we find no error in the decision of the judge. We must therefore affirm the judgment, leaving the defendant to move for a stay of proceedings, or to make such other application as he may be advised.

Judgment affirmed, with costs.

Present, Bosworth, Pierrepont, Hoff&an, Woodruff, and Slosson, JJ.