Stoll v. Padley

59 N.W. 176, 100 Mich. 404

Opinion

Per Curiam.

The plaintiffs in error were defendants in certiorari in the circuit. The plaintiffs in certiorari executed a bond which did not comply with the statute, but was conditioned to pay any judgment rendered against' them in the circuit court. No such judgment was rendered, but, on the other hand, the circuit court rendered a judgment in their favor. Motion is now made to enter judgment against the surety.

We cannot extend the liability of a surety by construction. The identical question was ruled by the supreme court of Massachusetts in Whitwell v. Burnside, 1 Metc. 39.

We are asked to change the form of the judgment entry so as to empower the .circuit court to enter judgment. But we think the application comes too late. The proper practice would have been to ask for a new; bond in that court. But, instead of doing so," plaintiffs have actually issued an execution upon the judgment in this Court.

Motion denied.