#### State of Iowa, Appellee, v. B. F. Marquardt et al., Appellants.

CRIMINAL LAW: Appeal — Liability on Bond. An appeal bond in a criminal cause, conditioned "to prosecute the appeal and to pay said fine * * * or so mueh thereof as the Supreme Court may direct,” is not, on affirmance, canceled by the imprisonment of the appellant for the time authorized by the fine.

*1312
      *Appeal from Winnebago District Court.*— E. G. Albeet, Judge.

December 15, 1922.

ACTION to determine tbe liability of sureties on a criminal appeal bond, tbe defendant having appealed to tbe Supreme Court of Iowa from a judgment imposing a fine upon bis conviction on. an indictment for maintaining a liquor nuisance. Tbe trial court determined that tbe bond upon affirmance of judgment by tbe Supreme Court was in full force and effect and overruled appellants’ motion to discharge said bond and entered judgment accordingly. Defendants *appeal.*—

Affirmed.

*Thompson, Loth & Lowe,*for appellants.

*Ben J. Gibson,*Attorney-general, and *Tom Boynton,*County Attorney, for appellee.

De Grafe, J.

-This appeal is in a narrow compass and involves the construction of Code Section 5506 as applied to tbe terms of tbe bond in suit.

On tbe fact side tbe record discloses that tbe defendant B. F. Marquardt was indicted March 22, 1917 by tbe grand jury of "Winnebago County, Iowa for tbe crime of liquor nuisance. Tbe trial on tbe indictment resulted in a verdict of guilty, and tbe defendant was sentenced to pay a fine of $450, an attorney fee of $50, and costs in tbe sum of $150.75, and to stand committed at bard labor in tbe jail of Winnebago County, Iowa until said fine was paid, not exceeding 135 days. Bond on appeal was fixed at $600. Judgment ivas entered accordingly, and thereafter an appeal was perfected to tbe Supreme Court of Iowa and an appeal bond was filed containing *inter alia*tbe following recital: “Now if the said Ben Marquardt will prosecute bis appeal and will pay said fine adjudged against him or so much thereof -as tbe Supreme Court may direct and in all respects abide tbe orders and judgment of tbe Supreme Court on appeal, # * * then this obligation to be void, otherwise in full force. ’ ’

This bond was signed by tbe defendant Marquardt, as prin*1313cipal, and by James Flynn and F. H. Pomeroy, as sureties. It was duly approved and filed by tbe clerk of tbe district court and tbe cause on appeal was affirmed by tbe Supreme Court of Iowa. *State v. Marquardt,*184 Iowa 1068. On May 24, 1919 a procedendo issued wbicb recited that tbe judgment of tbe trial court bad been affirmed and directing tbe district court “to proceed in said matter as if no appeal bad been taken and prosecuted.”

A mittimus caused tbe defendant Marquardt to be imprisoned in tbe county jail for tbe time specified in tbe judgment. Thereupon tbe clerk of tbe dictrict court entered of record a release of tbe appeal bond and an exoneration of tbe sureties pursuant to Code Section 5519. On November 29, 1921 plaintiff State of Iowa filed its motion to set aside tbe release of tbe bond making tbe original defendant and bis sureties defendants in the action.

Upon due notice to all parties and after a bearing in said matter judgment was entered by tbe trial court setting aside tbe purported release and satisfaction of tbe appeal bond and determining that said bond is in full force and effect. From tbe judgment entered this appeal is taken.

Code Section 5506 provides that after conviction and upon an appeal to the Supreme Court, if from a judgment imposing a fine, tbe defendant must furnish a bond conditioned that be will in all respects abide tbe orders and tbe judgment of tbe Supreme Court in said cause. This is not a case involving tbe appearance of a defendant in order that tbe judgment of a court may be performed.' Tbe bond in suit is not an appearance bond. Tbe undertaking of tbe bond is in legal effect tbe securing tbe assessment of a fine and tbe obligation to pay said fine in tbe event a reversal of tbe judgment was not obtained. Tbe judgment was affirmed, and tbe fine has not been paid.

Tbe provisions of Code Section 5519 upon wbicb appellants bottom this appeal are not applicable or controlling. Nor is the fact that tbe defendant Marquardt has been incareei'ated in tbe county jail for tbe period of sentence for failure to pay tbe fine a material circumstance. Nothing has happened to affect tbe conditions of tbe bond or tbe recitals in tbe judgment. Tbe sureties expressly obligated themselves to perform the judg*1314ment, if tbe principal failed so to do. The undertaking of the sureties, was to pay the fine in the event of an affirmance. They were in the first instance and are now bound by that undertaking.

We accept the reasoning and the conclusion announced in *Muscatine County v. Oliver,*159 Iowa 417, and in *State v. Meier*96 Iowa 375. The ruling of the trial court was correct and the judgment entered is *therefore*— Affirmed.

Stevens, C. J., Weaver and PREston, JJ.J concur.