Helt v. Whittier

Summary

The court holds that a surety's undertaking must be construed in connection with applicable statutes and is not subject to the same strict construction as a penal statute or forfeiture. It concludes that the surety's liability for Ward's default remains within the terms of the undertaking despite the rendition of judgment against Smith, reverses the judgment, overrules the demurrer, and remands the cause.

Holdings

1. The surety remained liable because the undertaking covered a judgment against Ward, and the judgment against Smith did not alter the nature or extent of Ward's default or charge Whittier for Smith's default.
2. A surety's contract is not to be construed as strictly as a penal statute or forfeiture provision; it must be construed according to its terms in connection with applicable statutes.

Questions Presented

1. Whether the addition of Smith as a party and the entry of judgment against both Smith and Ward placed the judgment outside the terms of Whittier's appeal undertaking.
2. Whether the petition adequately alleged Whittier's liability as surety for Ward's default despite the judgment's inclusion of Smith.

Disposition

reversed_and_remanded