(DOWNLOAD) "Gillette v. Bullard" by United States Supreme Court " Book PDF Kindle ePub Free
eBook details
- Title: Gillette v. Bullard
- Author : United States Supreme Court
- Release Date : January 01, 1874
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 51 KB
Description
The undertaking sued on was simply security for the judgment, and the plaintiff had no right to maintain an action thereon until the final affirmance of the judgment in the court of last resort. To enable him to maintain this action against the surety, it was necessary that he have a right to enter and collect a judgment of affirmance in the case.1 * This right, as the pleadings show, the plaintiff has never acquired. It is true that the defendant, in his answer or plea, does not allege in express terms that the cause is still pending in this court. But he avers that which, by reasonable intendment and independent of any enactment, is equivalent thereto, namely, that 'no remittitur or mandate has ever been issued from this court to the Supreme Court of the Territory, or from the Supreme Court of the Territory to the District Court; and that the judgment so rendered in the Supreme Court of the said Territory still remains in that court so stayed by the order thereof, by the giving of the said bond on appeal, and by the said supersedeas.' But the answer is made more effective by statute. The seventy-eighth section of the Practice Act of Montana enacts that in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed. Coustruing this answer or plea liberally, it must be taken to intend not only that the appeal had been taken, but that it had been perfected and was pending when the action was begun.