A motion for a modification of the judgment of this court has been filed. It is founded upon the proposition that, as we modified the judgment to the extent of denying one item of recovery in the sum of $100, and affirmed the judgment as modified, the sureties on the supersedeas bond thereby became discharged from the payment of the remaining portion of the judgment. The statute (section 17, chapter 43, Laws 1917) provides for a bond conditioned "for the payment of such judgment, and all the costs that may be adjudged against him in case such appeal or writ of error be dismissed or the judgment or decision of the district court be affirmed." The bond given in this case is conditioned that if the appellants "shall prosecute their said appeal with due diligence in the supreme court of the state of New Mexico, and, if the judgment or decision of the court below be affirmed, or the appeal be dismissed, shall comply with the decree of the district court, pay said judgment, and pay all damages and costs," etc. *Page 337
Counsel cites the case of Orr v. Hopkins, 3 N.M. (Gild.) 183, 3 P. 61, as supporting his contention that the sureties are discharged; but we do not find the case to support his contention. That was a case where an excessive amount of interest had been allowed, and the court required a remittitur of the excess interest, and affirmed the judgment as thus modified. The court held that this was an affirmance of the judgment, and that the sureties on the appeal bond were not discharged. This case was decided under statutes substantially like, if not identical with, our present statute. There is a statement in the opinion to the effect that if the appeal had been taken to correct the erroneous interest charge, a different conclusion might have been reached. But this was merely a suggestion, and not a part of the decision. The decision was that the judgment was an affirmance of the judgment below, and we fail to see the distinction whether counsel found and relied upon the error, or whether the court found it, and of its own motion compelled the remittitur. This case went to the Supreme Court of the United States, and is reported as Hopkins v. Orr, 124 U.S. 510, 8 S. Ct. 590,31 L. Ed. 523, and was affirmed, that court saying:
"The judgment of the district court was affirmed within the meaning of the territorial statutes and of the appeal bond."
See, also, 4 C.J. "Appeal and Error," §§ 3361-3365. See, also, note to Howell v. Alma Milling Co. (36 Neb. 80, 54 N.W. 126) 38 Am. St. Rep. 694, where a vast number of cases on this subject are collected.
[4] We are aware of the general doctrine that sureties are favored in the law, and their obligation is strictissimi juris, and may not be extended by implication. But this doctrine is susceptible of misapplication, resulting in injustice. The surety is the cause of the suspension of appellee's right to enforce his judgment, at a time, often, when it could be enforced. If the slightest modification of the judgment *Page 338 on appeal is to be deemed to discharge the surety, then the giving of a supersedeas bond affords no protection to the appellee in most cases. On the other hand, if the judgment of the district court be affirmed in principle, it should be held to be affirmed within the meaning of the statute and bond, notwithstanding some slight modification. In this way, the ends of justice are promoted, and the purposes of the bond, and the intention of the parties, are accomplished. See 4 C.J. "Appeal and Error," § 3321. Of course, the obligation of the surety must not be extended to something other and different from his undertaking, but such is not the case here.
It follows from the foregoing that the motion to modify our judgment should be denied, and it is so ordered.
BICKLEY and WATSON, JJ., concur.