The recognizance given on the appeal in this case, from the Justice’s Court to the District Court, was, in form and substance, that required by the statute. (§ 510, Crim. Prac. Act.). It undertook to pay all judgments for fine and costs that might be rendered against Biesman in the District Court. The breach alleged in the complaint in this case is that the appeal was dismissed in the District Court on the motion of the appellant, the defendant in the Justice’s Court. The defendants in this ease, Mahan and Walker, are sureties on the bond on appeal from the justice’s judgment.
It is a principle of law that requires nothing more than the statement that sureties may stand strictly upon their undertaking. The reason for this is made apparent by the numerous decisions to that effect. I refer to Brandt on Suretyship, ch. 19, with many cases and instances cited. This court also has held that doctrine in Barry v. Larabie, 7 Mont. 179.
Was the dismissal of the appeal in the District Court in this case such a breach of the condition of the bond that it will hold the defendants under the terms of their undertaking? Was a judgment for fine and costs, in the language of the bond and the statute, rendered in the District Court against Biesman, or can the dismissal of the appeal be construed as such a judgment for fine and costs?
I observe the difference between the statute providing for civil and that regulating criminal appeals. Sections 423, 424, and 427 of the Code of Civil Procedure are in reference to appeals in civil cases. Section 423 provides for a bond for costs and damages on the appeal, or on a dismissal thereof. Sections 424 and 427 provide for a bond for a stay of the judgment below pending the appeal, and in each section the bond is to be to the effect that the appellant will satisfy the judgment if it be affirmed or the appeal dismissed. A party appealing from a civil judgment in a Justice’s Court (§ 823, Code Civ. Proc.) *18must give a bond conditioned, among other things, that he will prosecute the appeal to effect. A dismissal would not be a prosecution to effect. So it is observed that in all civil cases the bond must guarantee against the dismissal. But such provisions are absent from section 510 of the Criminal Practice Act, under which the recognizance in question was given. That statute does not require the sureties to undertake to pay any fine or costs upon a dismissal of the appeal. This omission seems to be, to some extent, significant.
But the attorneys for the State argue that a dismissal of the appeal is, in effect, an affirmance of the judgment appealed from. They cite section 439 of the Code of Civil Procedure. That provision is not found in the Criminal Practice Act. But, even without the aid of a statute, I am of opinion that, on general principles, the dismissal of an appeal, where no second or further appeal lies, is practically an affirmance of the judgment appealed from. In any event, I am willing to adopt that doctrine for the purposes of this case. It was so held in the following cases: Osborn v. Hendrickson, 6 Cal. 175; Karth v. Light, 15 Cal. 324; Rowland v. Kreyenhagen, 24 Cal. 52; Chamberlain v. Reed, 16 Cal. 207; Ellis v. Hull, 23 Cal. 160; Chase v. Beraud, 29 Cal. 139; Sutherland v. Phelps, 22 Ill. 92; Haner v. Town of Polk, 6 Wis. 349; Hardee v. Stovall, 1 Ga. 92; Haner v. Lindsey, 3 Bush, 94; McConnel v. Swailes, 2 Scam. 571; Harrison v. Bank of Kentucky, 3 Marsh. J. J. 376; Simpson v. Prather, 5 Or. 86; Cobbs v. Gilchrist, 80 Va. 503; Beecher v. Lewis, 84 Va. 630. In New York it has been held that the dismissal of an appeal was not an affirmance of the judgment. (Watson v. Husson, 1 Duer, 242, and Drummond v. Husson, 14 N. Y. 60.) But that ruling was upon the construction of particular statutes.
The sureties on the bond which we are considering are not held by the letter of their obligation, for they did not, in terms, agree to pay the judgment of the Justice’s Court, in ease the appeal was dismissed. They agreed to pay a judgment of the District Court which should be rendered. The only construction of the facts upon which they can be bound is that, if the dismissal of the appeal was an affirmance of the judgment of the Justice’s Court, such affirmance was a judgment of the Dis*19trict Court for fine and costs contemplated by the statute and the recognizance. I note the following cases: The California cases last above cited and the following cases next below referred to. It was held in these cases that a dismissal of the appeal was an affirmance of the judgment below, and furthermore, that on such affirmance the sureties on the appeal bond were bound. Why was it so held? Because in McConnel v. Swailes the bond was to the effect that “in case the judgment be affirmed,” the sureties would pay. Garrick v. Chamberlain, 97 Ill. 627, affirms McConnel v. Swailes, but does not decide anything further, and makes no nearer approach to the proposition at bar. The same is true in Harrison v. Bank, Simpson v. Prather, Sutherland v. Phelps, and Karth v. Light, as in McConnel v. Swailes. Karth v. Light is the only one of the California decisions which I have cited in which I find the terms of the bond set forth. The other California cases hold that the sureties are bound by an affirmance of the judgment, by virtue of a dismissal of the appeal, but do not, in the decision, recite the terms of the bond. Karth v. Light was decided on the ground that the bond undertook to pay on an affirmance of judgment below, that a dismissal was an affirmance ; therefore, that by virtue of the affirmance, the breach had ensued, and the sureties were held. The later California cases, without informing the reader what the terms of the bond were, affirm this doctrine, and it is fair to assume that they were decided on the same ground as Karth v. Light, and that the bonds in those cases provided as did that in Karth v. Light. In Wooldridge v. Rawlings, Tex. Oct. 28, 1890, 14 S. W. Rep. 667, the bond on appeal from the judgment of a justice of the peace was conditioned for the prosecution of the appeal to effect. The appeal was dismissed. In an action on the bond it was held that the sureties were liable, and for the reason that the dismissal was a failure to prosecute to effect. But in the case at bar there was no condition to prosecute to effect, and therefore no condition broken by the dismissal. I can admit the doctrine of those eases, and still find no application of their reasoning to the case at bar; for the bond before us does not provide that the sureties will pay the amount if the judgment be affirmed. In that respect the cases cited are distinguished from the one before us.
*20Admit that the dismissal in the District Court of the appeal from the justice was, in this case, an affirmance of the judgment of the justice. Then what do the sureties agree to pay or that shall be paid? They do not promise to pay the judgment of-the Justice’s Court which had been rendered; nor do they promise to pay that judgment if it is affirmed, as was the case in the decisions above cited. They undertake to pay a judgment of the District Court which is to be rendered. The trial in the District Court is not a review. It is a trial de novo, on which judgment is to be rendered. Such trial never took place. No judgment was ever entered upon such trial which was the contemplated judgment which the defendants herein undertook to see paid. The result in the District Court was simply an affirmance of the judgment below; simply that the judgment below should be freed from the effects worked upon it by the taking of the appeal. The dismissal in the District Court only declared that the justice’s judgment should stand as it was before the appeal was taken. The affirmance, by virtue of the dismissal, created no new judgment. It simply affirmed, and finally established what was. “What was” was a judgment of the Justice’s Court. This the sureties did not undertake to answer for.
The affirmance remitted the parties to their position under the old judgment. In Haner v. Town of Polk, cited above, the ■opinion says: “We suppose the legal effect and operation of dismissing the appeal was to restore the judgment rendered by the justice. And we think it was irregular and improper for the Circuit Court, after having lost jurisdiction of the cause by dismissing it, to go on and vacate and set aside the justice’s judgment.” In Manier v. Lindsey, supra, the court says: “But, in any event, on dismissing the appeal, the law remitted the appellee to his original judgment, and did not allow another judgment by the Circuit Court for the amount of that judgment.” In People v. Dick, 39 Cal. 104, I find: “ On the simple affirmance of an order or judgment appealed from, no order of the appellate court, directing the court from which the appeal is taken to proceed to enforce the judgment, is necessary to re-invest that court with jurisdiction. Its jurisdiction is simply suspended by the appeal, and, on the return of the *21remittitur from the appellate court, the appellate court loses its jurisdiction of the case, and the court from which the appeal was taken resumes its jurisdiction as fully and absolutely as though no appeal or suspension of its jurisdiction had ever occurred.”
The court says in Ex parte Knox, 17 S. C. 218: “ When the judgment of the Circuit Court is simply affirmed, it may be seen that the judgment in the cause in which it is rendered is only a judgment of the Circuit Court unrevoked.”
The authorities that I have reviewed are appeals from a court of record to the Supreme Court, wherein the Supreme Court was a reviewing court. How much more forcible is the reasoning when the appeal is to the District Court, which does not review the judgment below, but tries the case de novo. Such trial de novo, a judgment upon which the sureties on the bond undertook to indemnify against, was never had.
The opinion of the majority of the court in this case remarks: “ The statute draws the distinction between the affirmance of a judgment and the conviction of a defendant upon a trial in the District Court, and in both cases judgment shall be rendered for a fine and ‘the costs in both courts against the defendant and his sureties.’ (§§ 510, 515, supra.) This was the duty of the court below when the appeal was dismissed.” But the District Court did not purport to render a judgment for a fine and costs, unless constructively; that is, that the affirmance was such judgment. But of this sufficient above. The District Court simply declared the bond forfeited. That is all. If it had entered judgment “against defendant Biesman and his sureties,” why the present action ? Why not have issued execution on such judgment, if there was one, against the defendant in this action?
The contention in the case at bar, it seems to me, reduces itself to one very simple point. I have reviewed cases which have held that if a bond provides that the sureties will pay on an affirmance of the judgment below, and if the appeal be dismissed, it is an affirmance, and therefore, for that reason, the sureties are bound. Again, if the bond is conditioned that the sureties will pay if the appeal is not prosecuted to effect, and the appeal is dismissed, it is not prosecuted to effect, and there*22fore, and for that reason, the sureties are liable. To demonstrate the inapplicability of those decisions to the case at bar requires no elaborate reasoning. It is wholly apparent. Those cases are good law on their facts. But they are of no interest upon a wholly different state of facts. The bond before us contained no such conditions as those in the cases above noticed. To sustain a forfeiture of this bond, it must be held that an affirmance in an appellate court is a judgment of the appellate court for fine and costs; whereas the whole tenor of precedent and reason, as far as I can find it — and I find no authority to the contrary, nor has any been suggested to me — is that a judgment of affirmance is an establishing, a confirming, a rendering unrevoked, or, using the word under discussion, which is a plain and unequivocal one, an “affirming” of the judgment below. If the sureties in the case at bar had undertaken, as did those in the cases reviewed, that they would pay if the judgment was affirmed, or the appeal was not prosecuted to effect, those cases would be wholly in point, and I would confidently follow them. What these sureties looked to was a judgment for fine and costs in the District Court, and, when such a judgment is rendered, it will be ample time to pursue the sureties on the undertaking into which they entered.
It is suggested that undesirable results would flow from the view that I hold. But when one considers all the provisions of the statutes in reference to undertakings, it would seem that the condition which the legislature left in section 510 of the Criminal Practice Act was by design and not by accident; but even if it were by accident, it is not the province of the court to remedy that which seems to be a mistake in a co-ordinate branch of the government. I am of opinion that the demurrer in the District Court was properly sustained, and that the judgment should be affirmed.