#### FRANK PRINZ v. E. LUTHER MELIN AND OTHERS.1

October 24, 1919.

No. 21,352.

Action on appeal — striking out sham answer.

Action against the sureties on an appeal bond. The answer of defendant in another action was stricken out and judgment ordered in favor of plaintiff. Defendant appealed from the order striking out the answer and for judgment. The appeal was dismissed by the appellate court and judgment entered therein for costs, which the appellant paid. This action was against the sureties on the appeal bond to recover the amount of the judgment in the trial court. Their answers were general denials, and the trial court made an order striking them out as sham. Defendants appealed from that order. The condition of the appeal bond did not provide for the payment of the judgment in the trial court in case of a dismissal of the appeal. The bond was set out in the complaint. The only effect of the answers was to raise an issue as to whether such judgment had ever been entered, although it was of record in the court where the action was pending. The liability of defendants could have been determined upon a motion for judgment. *Held:*The answers were properly stricken out.

Action in the municipal court of Minneapolis. From an order, Bardwell, X, granting plaintiff’s motion to strike out the answers of defendants as sham, defendants appealed.

Affirmed.

*H. Luther Melin*and *D. Theodore Melin,*for appellants.

*Lawrence F. Fagerstrom,*for respondent.

1

 Reported in 174 N. W. 412.

Per Curiam.

In a former action by plaintiff against Melin Bros. Incorporated, in the municipal court of the city of Minneapolis, the court made an order striking out the answer as sham and ordering judgment in favor of the plaintiff. Judgment was accordingly entered, a transcript thereof filed in the district court of Hennepin county, execution thereon issued and returned wholly unsatisfied. About four months after the entry of judgment, defendant appealed from the order striking out the answer and for judgment. Upon such appeal a bond was given, which the defendants in the present action signed as sureties, conditioned “to pay the costs of said appeal and damages sustained by the respondent in consequence thereof, if said order or *462any part thereof shall be affirmed and the appeal dismissed and to abide and satisfy the judgment or order of which the appellate court may give therein, and if the order appealed from is reversed this obligation shall be void.” The appeal was dismissed by the appellate court. Judgment was entered in the supreme court for costs and the same was paid by the appellant therein.

The present action -was brought against the defendants as sureties upon such appeal bond, to recover the amount of the judgment in the former action. The defendants interposed separate answers in the form of general denials. The court below, upon motion, made an order striking out the answers as sham. This is an appeal from such order.

It will be observed that the condition of the appeal bond in question does not provide for the payment of the judgment in the court below in case of a dismissal of the appeal. It is conditioned that if the appeal is dismissed appellant will abide and satisfy the judgment or order of the appellate court. The judgment for costs in the appellate court was paid and satisfied by the appellant therein. The only effect of the answers was to raise an issue as to whether such a judgment had ever been recovered by respondent, though it had been rendered and was of record before the court where this action was then pending. The bond is set forth in the complaint. Defendants' liability could have been determined upon a motion for judgment. The answers were properly stricken out.

Affirmed.