Mitchell v. Shuert

17 Mich. 65, 1868 Mich. LEXIS 40

Opinion

Per Curiam.

We do not think we have authority to render judgment against ’ the sureties as requested. Their undertaking is special and statutory, and the statute provides precisely what consequences shall follow a breach. At his option the appellee may take judgment against them on motion and without process. This is a wide departure' from the common law course of proceeding, and such a judgment could not be sustained, except that the party must be understood to have agreed to it by his contract. But the statute also says the sureties shall be discharged unless execution is issued within thirty days. It contains no saving for the case of the removal of the judgment to this court, and we have no power to make any. The statute in regard to cases made, it is true, provides that we may render such judgment as the court below should have rendered; but this, we think, must be understood of the judgment upon the issue between the parties. The law giving summary remedy against the sureties belongs to a class which can not be extended by construction.

Motion denied.