Rae v. Harteau

Citations

• 7 Daly 95

Syllabus

<p>The notice of entry of judgment of affirmance, required by sec. 348 of the (old) Code of Civil Procedure § to be served upon the adverse party ten days before bringing suit upon an undertaking upon appeal, must be a written notice that there has been an entry of a perfected judgment. The statute must be strictly complied with, and the service of a paper purporting to be a copy of an order of affirmance, without any notice that it has been signed or entered, is insufficient, and an action upon the undertaking cannot be sustained upon proof of service of such an order ten days before suit.</p> <p>Failure of proof of such notice cannot be supplied by showing that the defendant in the original suit, without waiting for notice of entry of the judgment, moved under L. 1871, c. 282, § 8, for a certificate to enable him to go to the Court of Appeals, nor by showing that the sureties, when demand of payment was made on them, did not base their refusal to pay on the failure to serve such notice.</p> <p>The fact that sureties on an undertaking on appeal have been indemnified, does not estop them in a suit on the undertaking from insisting on proof of performance of all the conditions required by the statute precedent to a suit on it.</p>