On Motion to Dismiss.
The opinion of the court was delivered by
Fenner, J.Nothing is submitted for our present determination except the motion to dismiss filed in this court.
The grounds of the motion are the following:
That the appeal bond filed by the defendants and appellants from said final judgment is defective in form and substance, in this:
1. That while the said judgment casts the defendants in solido, the *800bond of appeal was given by them jointly, and the surety guarantees their payment of the judgment jointly for an aliquot part of said judgment, and that said surety does not guarantee payment of the judgment by said defendants in solido.
2. That there were parties included as principals in said appeal bond who are not cast by the judgment.
Another ground is assigned in the motion, vi?.: That the surety is not good and solvent, and such as the law requires. ’This, of course, can not be determined by us under a motion to dismiss. It was submitted to the lower court and decided adversely to the appellee, from which decision he has taken a separate appeal. We can not consider the questions involved therein until said appeal shall be tried and submitted. The other grounds above stated have no merit.
The court conforms, in all respects, to the requirements of law.
The judgment appealed from was rendered against the defendant firm and all the members in solido. They all join as principals in the bond, and the condition is that they shall prosecute their appeal and satisfy whatever judgment shall be rendered against them, otherwise that the surety shall be liable in their place. The nature of their obligations under the bond will be determined by the final judgment rendered on the appeal. If that condemns them in solido, they and their surety will be bound accordingly. It was not necessary that the bond should expressly stipulate a solidary liability.
The complaint that the husbands of some of the married defendants are joined as principals has no foundation. Their joinder was manifestly for the purpose of authorizing their wives, and is, otherwise, harmlessly superfluous.
Motion denied.