Viall v. Viall

In the proceeding to determine the damages sustained by reason of the order staying proceedings pending appeal and the undertaking given pursuant thereto, the plaintiff made the defendant a party although he had not signed the undertaking and was not liable thereon. The defendant appeared and participated in the reference. By his so doing the surety company might claim that the order confirming the referee’s report was res adjudicata as to him. Moreover, the defendant doubtless would be liable *549over to the surety to the extent of any sums which the surety was directed to pay as such. In view…