The following opinion on rehearing was filed May 5, 1904. Judgment below affirmed:
Sedgwick, J.Ettenheimer recovered a judgment of restitutum before a justice of the peace in a suit for forcible detainer. His opponent took an appeal to the district court, and gave the bond upon which this action is brought. The case was docketed in the district court as an appeal, and was treated by both parties as being properly before the court.. It was again tried in the district court, and there was a verdict *148and judgment in favor of defendant. The plaintiff then brought the action to this court. Ettenheimer v. Wallmmi, 63 Neb. 647. It Avas held that the district court had no jurisdiction of the appeal, and that the judgment of the justice of the peace Ayas not affected thereby. The judgment of the district court was reversed, and the appeal from the judgment of the justice Avas dismissed. The plaintiff then brought this action upon the bond.
It was held upon the former hearing, ante, p. 144, that the plaintiff Avas estopped to prosecute the action, and the judgment of the district court in his favor was therefore reversed. The reason given for this holding was that one Avho successfully attacks appellate proceedings, upon the ground that they are not authorized by laAV and Avholly void, is estopped afterwards to assert that they are in any respect valid.
If the proceedings in the district court Avere entirely void, because there Avas no law authorizing an appeal, as held in Armstrong v. Mayer, 60 Neb. 423, and Ettenheimer v. Wattman, supra, it is not apparent upon what theory it may be said that the plaintiff attacked the appellate proceedings. He might have treated the attempted appeal as absolutely nugatory. He might have compelled the issuing and execution of a writ of restitution on the judgment of the justice of the. peace, notAvithstanding the attempted appeal. This Avould have been a successful attack upon the appellate proceedings. But, instead of so doing, both parties appear to have treated the appeal as valid. It might Avith better reason be said that the plaintiff acknoAvledged the validity of the appeal.
It is insisted by plaintiff that the action of this court Avas upon its OAvn motion, folloAving the decision in Armstrong v. Mayer, supra, and that the plaintiff urged other grounds for the reversal of the judgment of the district court. But, whatever may be said of plaintiff's subsequent action in this court, it is certain that Avhen the defendant asserted his right to appeal, and to give the bond now in suit and procure a stay of execution, and so retain posses*149sion of the premises, the plaintiff acquiesced in that action and treated the defendant’s appeal as valid, at least, until the time of the trial in the district court. There can be no doubt that the defendants herein were at that time estopped to deny their liability upon the bond, under the holding of this court in Stevenson v. Morgan, 67 Neb. 207, and McVey v. Peddie, 69 Neb. 525.
In both of these cases, the actions were upon bonds identical with the one involved here. In the former, the . court, after discussing the distinction between cases in which the contract involved must depend for its consideration solely upon the requirements of the statute and those cases in which the contract “rests upon a consideration of - its own,” said:
“The basis of distinction between these two lines of cases is the consideration. If it exists, the instrument . may be enforced like any other contract and the annulment of, or departure from, a statute providing for it is not fatal. If, on the other hand, the consideration is absent, the instrument, like any othér nudum pactum, affords no basis for recovery. In the case at bar the principal obligor on the bond was enabled by means of it to retain possession of the premises. At the time of the trial below, in February, 1901, he had occupied them for nearly three years following the execution of the bond. As one condition of the bond sought to be enforced Avas payment of rent, it will be seen that the obligor’s promise was supported by a sufficient consideration, and this, without taking into account the fact that he also obtained pro forma, at least, a, review of the justice’s judgment in the district court. Indeed, it can not be doubted that if the instrument in controversy be denied the character of a bond at all and be treated simply as an agreement to pay rent in consideration of the occupancy of the premises, recovery must be allowed.”
Many of the authorities are reviewed and applied, and Ave are entirely satisfied with the conclusion reached. It is approved and followed in McVey v. Peddie, supra. There *150is no distinction between these two cases and the one at bar, except in the fact that in this case the proceedings afterwards taken in the district court were declared void. If the defendant obtained no other benefit of his attempted appeal, he, at least, was enabled to present the question to this court, and in the meantime retained the possession of the premises in dispute. The object of the undertaking was to protect the plaintiff against two source's of possible injury:
(1) He would be subjected to expenses in the district court, which would be unnecessary if the judgment already rendered should finally stand as the law of the case:
(2) He would, while the proceedings were pending, be deprived of the possession of the premises which had been awarded to him by the judgment of the justice. The condition of the undertaking was likewise twofold. To pay costs; and to pay rent. Each several liability was supported by a distinct consideration. He had the use of the premises for which, by his undertaking, he agreed to pay.
We do not see how the fact that neither party relied, upon an estoppel, in the pleadings in this case, operates in favor of the defendant. The plaintiff, in his petition, sets out the facts in regard to the institution of the action of forcible detainer, the trial and judgment in his favor in justice court, the giving of the bond and attempted appeal to thé district court, the plaintiff’s acquiescence in the same and the hearing thereon in the district court in pursuance of the attempted appeal. He also alleged that, afterwards, the supíneme court dismissed the proceedings.
The answer of the defendant denied these allegations and set forth other matters in defense, without alleging an estoppel against the plaintiff. The reply was a general denial. Under these issues, the defendant could not, upon the trial, insist upon an estoppel against the plaintiff, without confessing the estoppel which first arose against himself.
“Estoppel against estoppel. commonly sets the matter at large.” Bigelow, Estoppel (5th ed.), 860. Mr. Bigelow *151cites, among other authorities, Branson v. Wirth, 17 Wall. (U. S.) 32, 21 L. ed. 566, in which the court say:
“Even if it were otherwise, and if the government could, in any aspect of the case, claim the benefit of the legal estoppel, it would be prevented from doing so by its own patent granted to Egerton. That would present the case of estoppel against estoppel, which, Lord Coke says, setteth the matter at large. No one can set up an estoppel against his own grant. Whoever else, therefore, might set up the estoppel against Egerton’s title to the lot in question, the government could not do so.”
The defendant had the use of the premises from the time he gave the appeal bond. This use of the premises belonged to the. plaintiff. The defendant gave the bond, among other things, for the purpose of obtaining this advantage, which he did obtain thereunder. líe can not say that he had no right to stay the execution. If the conduct of Ettenheimer was such as to have estopped him against other parties, it can not have that effect in favor of these defendants, who are estopped to deny their liability. Being estopped to deny their liability, they are also estopped to urge anything that would have that effect.
The fact that the statute under which it Avas attempted to take the appeal Avas unconstitutional and void, does not change the rule. “The principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached upon other grounds.” Tone v. Columbus, 39 Ohio.St. 281, 308. Daniels v. Tearney, 102 U. S., 415, 26 L. ed. 187.
2. It is objected that the bond was not executed so as to bind the company. The .name of the company is signed, “per A. W. Miller, Agt.” A power of attorney Avas in evidence which appoints “B. S. Mockett and A. W. Miller and E. P. Hovey,” attorneys in fact for the company, to execute bonds. It also contains the clause:
“It being the intention of this power of attorney to fully authorize and empoAver the said E. S. Mockett and A. W. *152Miller or E. P. Hovey to sign the name of said ’company.”
It is insisted that this power should be construed to authorize R. S. Moclcett to act in connection with A. W. Miller, or in connection with E. P. Hovey, and does not authorize Mr. Miller to act alone for the company. We can not so construe it. There is no provision that the three. agents, or any two of them, must act together. The bond appears to be duly executed.
The former judgment of this court is vacated, and the judgment of the district court.
Affirmed.