In extension of the facts stated in the majority opinion, it appears that Vivian F. Baldwin and her husband instituted an action in the district court against the Singer Sewing Machine Company, a corporation, and one Anderson, to recover damages for personal injuries alleged to have been sustained by Vivian F. Baldwin as a result of being struck by an automobile driven by Anderson. The complaint alleged that at the time of the accident Anderson was an agent of the sewing machine company acting within the scope of his employment. From a judgment against the sewing machine company and Anderson an appeal was taken to this court, resulting in a reversal of the judgment against the sewing machine company and affirmance of the judgment against Arderson.
To stay execution of the judgment of the trial court against the sewing machine company pending appeal, the American Surety Company executed a supersedeas bond, in terms as set out in the majority opinion. Upon the going down of the remittitur of this court, filed in the office of the clerk of the district court May 22, 1930, and in compliance therewith, the trial court "ordered, adjudged and decreed . . . . that the plaintiffs Vivian F. Baldwin and E.R. Baldwin take nothing from defendant Singer Sewing Machine Company, and that the said cause of action be, and the same is hereby dismissed as to the defendant Singer Sewing Machine Company, a corporation."
On June 23, 1930, upon ex parte motion, appellants here, before a judge other than the one who tried the original action, procured a judgment to be entered against the American Surety Company on the supersedeas bond. On June 26, 1930, upon notice and motion, respondents moved the court to set aside and vacate the judgment heretofore entered against the American Surety Company, upon three grounds, (1) that the judgment was void; (2) that it was contrary to good conscience; and (3) that it was entered without notice to the American Surety Company. After a hearing and due consideration of the motion, and affidavit filed therewith, the court made the following order: *Page 619
"Now, therefore, it is hereby ordered, adjudged and decreed, that that certain judgment made and entered in the above entitled cause on June 23, 1930, against the American Surety Company of New York, a corporation, in the sum of $22,357.21, together with interest thereon at the rate of seven per cent per annum from date until paid, be, and the same hereby is, vacated, annulled and set aside, and the same is hereby declared to be null and void, and the execution issued pursuant thereto be, and the same hereby is quashed and recalled."
This appeal is taken from the above order.
In the majority opinion it is held that the lower court had jurisdiction to enter the judgment upon thesupersedeas bond and that its action in this regard is not subject to be reviewed by notice and motion, but on appeal. This position to my mind is not tenable. This court has now before it the identical record it would have, had an appeal been taken. If the judgment entered upon the supersedeas bond is void upon its face and it so appears from the record, it was subject to attack upon notice and motion, or it was within the power of the trial court, upon its own motion, independent of any statute, to vacate the judgment. (Gile v. Wood, 32 Idaho 752,188 P. 36; Nixon v. Tongren, 33 Idaho 287, 193 P. 731;Miller v. Prout, 33 Idaho 709, 197 P. 1023; 15 Cal. Jur., pp. 52, 53, sec. 141; Du Bois v. Clark, 12 Colo. App. 220,55 P. 750.) Even though the judgment was not void upon the face of the record, it was nevertheless subject to be vacated upon motion made within a reasonable time by a showing of lack of jurisdiction of the court to enter it. (Armitage v. HorseshoeBend Co., 35 Idaho 179, 204 P. 1073; Nixon v. Tongren, supra;Norton v. Atchison, T. S. F. R. Co., 97 Cal. 388, 33 Am. St. 198, 30 P. 585, 32 P. 452; 14 Cal. Jur., p. 1024 et seq.)
The supersedeas bond upon its face and throughout its contents shows clearly that it was given to stay execution upon the judgment and the whole thereof entered against the sewing machine company. Anderson's name nowhere appears in the bond, and in order to uphold the judgment *Page 620 entered upon the supersedeas bond it becomes necessary for the court to read into the bond that it was given to stay execution of the judgment against Anderson as well as against the sewing machine company. This the court has no authority to do.
It is fallacious to contend that under a judgment joint in form but in fact and in law joint and several against two or more defendants, a stay of execution on such judgment in favor of one of the defendants pending an appeal is a stay of execution as against all of the defendants. It is likewise illogical to contend that a supersedeas bond stays proceedings in favor of a person not named in the bond. Appellants were in a position at any time from the entry of the original judgment against the sewing machine company and Anderson to execute upon the judgment against Anderson, the latter having furnished nosupersedeas bond. (C S., secs. 7155, 6902 (amended, Sess. Laws 1929, p. 70); 23 C. J., p. 533; 3 C. J., p. 1324, sec. 1451; 2 Cal. Jur., p. 472, sec. 222; Drabant v. Cure, 280 Pa. 181,124 A. 340; State v. Beveridge, 109 Or. 69, 218 P. 1112;Bergevin v. Wood, 11 Cal. App. 643, 105 P. 935; Ex parteFrench, 100 U.S. 1, 25 L. ed. 529.)
The supersedeas bond is the foundation of the judgment obtained thereon and must be interpreted from its four corners. The surety is entitled to have his bond strictly construed. His liability cannot be extended by implication. He has a right to stand upon the exact words of his contract, and his liability is limited to the language of his bond. (City of Pocatello v.Fargo, 41 Idaho 432, 242 P. 297; Jackson v. Barrett, 12 Idaho 465,86 P. 270.) With this principle in mind the bond should be examined for the purpose of determining whether the court had jurisdiction to enter the particular judgment. The court must not only have jurisdiction of the person and the subject matter but power and authority to render the particular judgment. In the opening of the bond we find this language: *Page 621
"Whereas, the defendant Singer Sewing Machine Company, a corporation, in the above entitled action has appealed to the Supreme Court of the State of Idaho from the judgment made and entered against it in the above entitled action in the above entitled court in favor of the plaintiffs in said action, . . . . and from the whole of said judgment",
— the whole of said judgment against the Singer Sewing Machine Company, not the whole of the judgment against Anderson. Anderson is an entire stranger to the American Surety Company. That he was never thought of when the supersedeas bond was given is a fact apparent from the entire record. To read his name into the bond or to create a liability against the American Surety Company by reason of the fact that the judgment was rendered against Anderson and the Singer Sewing Machine Company is to do violence to the language of the bond. No language could be plainer to my mind, from a reading of the bond, than that it was the intention of the American Surety Company to furnish a supersedeas bond for the Singer Sewing Machine Company alone. Had it intended to furnish a bond for both the sewing machine company and Anderson, language would have been used to that effect. It names the Singer Sewing Machine Company in its bond, it refers to the judgment entered against the sewing machine company in its bond, and the bond is given to stay execution against the whole of the judgment entered against the sewing machine company. This is further emphasized by the next paragraph of the bond, which is as follows:
"And whereas, the said appellant, Singer Sewing Machine Company, a corporation, is desirous of staying the execution of said judgment so appealed from."
What judgment? The judgment appealed from by the Singer Sewing Machine Company. We must look to the whole instrument to gather the intention of the parties, the preamble as well as the condition of the bond, and particularly is this true where there is doubt. The condition of the bond is even more explicit than the preamble in limiting *Page 622 liability on the bond to a stay of execution against the Singer Sewing Machine Company. It is as follows:
"Now, therefore, the undersigned American Surety Company, a corporation authorized to, and doing business in the state of Idaho, in consideration of the promises and of such appeal on the part of said appellant, Singer Sewing Machine Company, a corporation, does hereby acknowledge itself firmly bound in the sum of Twenty-five Thousand ($25,000.00) Dollars, gold coin of the United States, that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant will pay in gold coin of the United States of America, the amount directed to be paid as to which said judgment shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the said appellant does not make such payment within thirty days from the filing of theremittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of respondents in their favor and against the undersigned surety for the sum of Nineteen Thousand Five Hundred Seventy-three and 70-100 ($19,573.70) Dollars together with the interest that may be due thereon and the damages and costs which may be awarded against the said appellant, Singer Sewing Machine Company, upon the appeal."
It affirmatively appears from the condition of the bond as above set out that the bond was given solely for the purpose of staying execution against the Singer Sewing Machine Company, with the amount of the judgment payable only in the event the judgment against the Singer Sewing Machine Company or any part thereof be affirmed. If the judgment against the sewing machine company had been affirmed in part the bond would be answerable to the extent of the affirmance.
The bond is unambiguous and clearly determines the liability of the surety. There is no room for construction and no justification for holding that the bond will be considered no further than to examine it in aid of determining *Page 623 the sole question of the trial court's jurisdiction to enter judgment on the bond. Even under such a technical view there is ample justification for holding that the judgment entered on the supersedeas bond was void. But the majority opinion actually construes the bond and its legal effect and holds that because the judgment was affirmed as to Anderson, it was affirmed in part and the surety is liable.
To recapitulate, we have this situation: The district court had no jurisdiction over the Singer Sewing Machine Company after the judgment against it had been set aside in this court. The rule is that when an order is entered in an appellate court reversing a judgment it is forthwith vacated and no longer remains in existence. (2 Rawle C. L., p. 270, sec. 222.) When the judgment was set aside as to the sewing machine company, the American Surety Company could not be liable because its principal had been dismissed. (1 Freeman on Judgments, 5th ed., p. 1026, sec. 466; Howell v. Alma Milling Co., 36 Neb. 80, 38 Am. St. 694, notes, pp. 702-712, 54 N.W. 126; First Nat. Bankv. Rogers, 13 Minn. (Gil. 376) 407, 97 Am. Dec. 239; Burnham v.Edwards, 125 Okl. 272, 257 P. 788, 53 A.L.R. 800.) The bond upon its face, in unmistakable language, shows that it was given to stay execution against the Singer Sewing Machine Company and for no one else, and the court therefore had no authority to construe the bond to include the judgment against Anderson. The judgment against the Surety Company on thesupersedeas bond was therefore void when entered, and was subject to attack by motion to, and was properly, set aside.
No other result can follow from the holding of the majority than a miscarriage of justice, and it is repugnant to both the state and federal Constitutions in that the Surety Company is deprived of its property without due process of law. *Page 624