Johnstone v. Conner

The points urged by the appellants against the decision appealed from are fully answered by the opinion of the court below. The decision by the court of appeals in the action pending there, deprived Keese of any proprietory interest in the judgments recovered in the joint names of Keese and Johnstone, and as the judgments were in all things affirmed as to Johnstone it left him the sole owner thereof. The judgments are unpaid and the sureties upon the appeal to the court of appeals, by the fair interpretation of their undertaking must be held to have agreed to pay them in case of their affirmance by the appellate court. The form of the affirmance is of no consequence so long as the adjudication was absolute and *704final in favor of Johnstone, and conclusive against their principal. The contingency that has happened is one which the nature of the appeal made possible, and is, therefore, within the contemplation of the sureties when they voluntarily executed their undertaking.

The judgment and order must be affirmed, with costs.