ON MOTION FOR REHEARING.-
ROBERTS, J.Appellants have filed a motion for rehearing in this case, advancing three grounds therefore, as follows: First, that a joint judgment at law, which is er-entirety if another disposition thereof would prejudice any of the appellants; second,-that where a bond is not in the form prescribed by statute, the court has no jurisdiction to direct a judgment against the bondsmen in a summary proceeding, even though, tbe bond in question may have been given and accepted as a supersedeas bond; third, that there has been no breach of tbe conditions of tbe bond which was executed in this ease. .
[4-6] It is perhaps true that under the common law a joint judgment, erroneous as to one of the parties, was required to be reversed as to all tbe parties jointly liable, but this rule is abrogated in this state by sections 4074, 4076 and 4078. Appellants state tbat tbe Supreme Court of the United States has held that when complete justice may be best accomplished through a final disposition of such cases by the appellate tribunal, the court may, in the exercise of its sound discretion, affirm the judgment appealed from as to one joint appellant and reverse it as to others. In this case, however, appellants contend that the Mazon Estate, Incorporated, is prejudiced by the affirmance of the judgment as to its coappellant, Leopoldo Mazon, and for this reason the case should also have been reversed as to him. The basis for the claim of prejudice is that both appellants executed a joint supersedeas bond, and the affirmance of the judgment as to Leopold Mazon makes it •liable on such bond. The answer to this contention is that it voluntarily executed the bond in question. The Mazon Estate, Incorporated, is not prejudiced by our affirmance of the judgment as to Leopoldo Mazon, in so far as the judgment rendered by the district court is concerned, for we have relieved it from liability under such judgment. If injury results to it, it is occasioned by its voluntarily entering into a joint supersedeas bond with its coappellant. It could have avoided liability by giving a separate bond, but it elected to supersede the judgment, not only as to itself, but for its coappellant. By joining in the bond in question as a coprincipal, it' becomes a surety for its co-principal. The reversal of the judgment as to one of the appellants does not relieve the coappellant and principal and sureties from liability on the supersedeas bond.
“The general rule is that co-principals in a bond are sureties for each other. On an appeal bond executed by three persons as principals and one as surety, judgment may be entered by the creditor against all three of the principals, notwithstanding the verdict finds against one nf the principals only. The two principals against whom the appellant failed to recover having joined in an appeal bond with, a coprincipal in that bond against whom there was a recovery in the action, they stood in relation of sureties for him.” Lewis et al. v. Maulden, 93 Ga. 758, 21 S. E. 147.
“It is contended, first, that the appellant was released from its obligation on the appeal bond because of the partial reversal by this court of the judgment which the bond was given to supercede. The contention is rested on the ground that the language of the bond is join in form; that, while the bond is conditioned to bind the surety as to judgments and orders rendered or made, or ordered to be rendered or made, against the appellants jointly on the appeal, it is not condiHoned to bind the surety to judgments or orders made, or directed to be made, against them severally. The case of Marsh v. Byrnes, 7 Wkly. Law Bul (Ohio) 345, is cited as sustaining the contention. Seemingly the caes does so, but it was based on the case of Lang v. Pike, 27 Ohio St. 498, which we find was overruled in the later case of Alber v. Frelich, 39 Ohio St. 245. But we could not accept the contention as controlling in any event. Our statute permits of joint appeals, and further provides that the Supreme Court may, on the appeal, affirm, reverse, or modify! the judgment appealed from as to any or all of the parties. It provides for but one form of bond, conditioned in but one way, whether the appeal be joint or several. Since the bond in question was given pursuant to this statute, and is conditioned as prescribed therein, it would be a perversion of its purpose and meaning to hold that, because the bond referred to the appellants jointly, instead' of jointly and severally, it is insufficient to secure the respondents, in so much of the judgment as was awarded in their favor.” McFeron v. Fidelity & Deposit Co., 85 Wash. 303, 148 Pac. 14.
“The judgment was also properly entered against the defendant’s surety in- the appeal bond, notwithstanding/ the acquittal in the circuit court of one of the two defendants against whom the original recovery was had. To hold otherwise would be a very narrow construction; of the statute, * * * required neither by the words of the act nor the obvious intention, of the Legislature, and tending rather to defeat than to promote the administration of justice.” Hood v. Mathis, 21 Mo. 308, 313.
See, also, Vandyke et al. v. Weil, 18 Wis. 277; Johnson v. Reed, 47 Neb. 322, 66 N. W. 405.
The judgment in question was for a fixed sum of money, and under section 4485, Code 1915, the supersedeas bond should have been “in double the amount of such judgment complained of.” The appellants, however, elected to supersede the judgment by executing a bond under tlie latter portion of such- section, which in brief, provides that where the judgment is for other than a fixed amount of money, the district court or the judge thereof shall fix the amount of the supersedeas bond. In tbis case appellants applied to the district court to fix the amount of the bond in question, and this it did, fixing the amount thereof at $5,000, which was more than double the amount of the judgment and costs. The bond was conditioned as required by the statute in such cases, with the exception that the word “confirmed” was used instead of “affirmed,” as provided by the statute. Recause of their failure to strictly comply with, the statute in the maimer of executing the bond, appellants now seek to avoid liability under the bond. A few quotations from adjudicated cases and text-books will dispose of this contention:
“Xastly, it is claimed that the bond did not conform to the statute providing for the execution of supersedeas bonds to stay judgments, and prescribing the conditions to be inserted therein. The bond is not in strict comformity to the statute. * * * The parties executed it and got all they desired under it, to wit, a stay of execution pending the determination of their proceeding in error. They cannot now be heard to urge its lack of conformity to the law. * * * They cannot now be heard to say that what they offered as a legal obligation, and which he accepted as such, was invalid and not binding upon them.” Gille v. Emmons, 61 Kan. 217, 222, 59 Pac. 338, 340.
“It is said that the contract of a surety is strictissimi juris.
The saying is liable to abuse in its application. Considering; the situation of the obligee in an appeal bond, it would seem that his right should he regarded equally with those of the surety. An appeal bond may he executed and approved, and this accepted for the judgment creditor, without his consent or knowledge^ and thereby the enforcement of his judgment is stayed. It is the act of the surety which enables the judgment debtor to accomplish such result. The surety, having thus prejudiced the judgment creditor, and having thus' obtained for his principal (the judgment debtor) the benefit of an appeal, should not, upon the breach of the condition of the bonds, he allowed to escape liability except for the most substantial reason.” Shannon v. Dodge, 18 Colo. 164, 169, 32 Pac. 61, 63.
See, also, Callbreath v. Coyme, 48 Colo. 199, 109 Pac. 428, 430.
"The ordinary canons of interpretation of contracts are to he applied in the construction of appeal securities, the rule being that the contract will, where possible, he so construed as to carry out the intention of the parties. * * * In construing the conditions of an appeal bond the court will examine the entire instrument to ascertain its meaning, and consider, not only the subject-matter, hut the situation of the parties and their purpose in making the contract. Courts will construe the bond according to the ordinary meaning of the language used, and will not adopt a construction which will do violence to the rules of language or law; hut they may transpose or reject insensible words and depart from the letter of the text to effect the intention of the parties, where it can be done without framing a new contract. * * * Reference may also be had to the nature and character of the judgment appealed from and to the record of proceedings, to determine the purpose and intent of the bond.” 4 O. X 1252, § 3321.
“In order to be valid as a statutory obligation, an appeal bond must be conditioned in substantial compliance with the statute; but the exact form or language of the statute need not be followed, if the condition expressed is of substantially the same import.” 4 C. J. 1250, §3320.
We conclude that where a supersedeas bond is executed sureties thereon cannot escape liability by showing that such bond does not literally comply with the language of the statute, if the condition expressed is substantially of the same import.
The third contention advanced by appellants is disposed of by the cases cited under the first point discussed.
For the reasons stated, the motion for re-hearing will be denied; and it is so ordered.
'HANNA, J., concurs. PAEKEE, J., being absent, did not participate.