Whittaker v. United States Fidelity & Guaranty Co.

BOURQUIN, District Judge.

In this action upon a stay bond, the first count of the complaint sets out the bond in hsec verba, and alleges the condition is payment, if appeal is nót “with effect”; the second count alleges the quoted words were omitted by the debtor’s fraud, inadvertence, or mistake; and the prayer of the first is a money judgment, and of the second is likewise after reformation. The answer denies the condition and omission as in the complaint alleged, alleges res judicata, and limitations to the second count.. At trial, plaintiff dismissed the second count, and both parties, in…