‘ ‘ The appeal is not perfected until a bond in the following form, or its equivalent, is taken and filed in the office of the justice or clerk as above provided, in an amount sufficient to secure the judgmеnt and costs of appeal:
“The undersigned acknowledge ourselves indebted to ' ........................in the sum of............dollars, upon the following conditions: Whereas...............has appealed from the judgment of..................¡ a justice of the peacе, in an action between..............as plaintiff, and........................as defendant:
“Now, if said appellant pays whatever amount is legally adjudged against him in the further progress of this cause then this bond to be void.
“Approved:
“E......E......, Justice.
A....... B......, Principal.
C......D......, Surety.
“If the judgment is affirmed, or if on a new trial thе appellee recovers, or if the appeal is withdrawn or dismissed, judgment shall be rendered against the principal and surety on said bond. ’ ’
The bond given by defendant for the appeal was in this language:
APPEAL BOND.
$150.00.
We, the undersigned, acknowledge ourselves indebted to Geo. J. Brown in the sum of one hundred and fifty dollars upon the following conditions:
Whereas, G. B. Melloon has appealed from the judgment
Now, if said appellant pays whatever amount is legally adjudged against him, in the further progress of this cause, then this bond to be void.
Approved: Geo. J'. Speaker.
■ A_ D WooDKE^
T. L. Yeitch.
State of Iowa, Sac County.
The undersigned, whоse names are signed to the above bond as sureties, being severally sworn depose and say, and each for himself says, that he is a resident of the state of Iowa, and a free holder therein; that he is worth double thе amount to be secured by the above bond, beyond the amount of his debts, and that he has property liable to execution in this state equal to the sum to be’ secured by the above bond.
A. D. Woodke,
T. L. Yeitch.
Sworn to before me and subscribed in my presence by the said A. D. Woodke and T. L. Yeitch this 5th day of April, 1913.
Geo. J. Speaker,
Justice of Peace.
This bond was approved by and left with the Justice, and by him filed with the clerk of the district court, with his transcript of the record.
It will be observed that this bond was not signed by the appellant Melloon, and that it was not marked “filed” by the justice, and upon these defects or omissions, the motion to dismiss the appeal was grounded. The bond was approved by and left with the justice, and his failure to mark it “filed” is nоt a jurisdictional defect. Brock v. Manatt,
Failure to place a filing mark upon the bond, being the nonperformance of a mere ministerial act, did not defeat the appeal.
If the instrument be a mere contract obligation of a named principal and sureties, and it be not signed by the principal, then, as there is no principal obligation, there is no undertaking on the part of the sureties; and if signed by them alone', there is no enforceable liability; for their obligation is secondary only. If the bond be a statutory one, the nature thereof is an important consideration, especially if the statute be silent as to its terms. As a rule, a bail bond, in the absence of statutory permission for sureties alone to sign, must be signed by the principal obligor or the defendant in the action. This rule is for the protection of the sureties, that they may at any time arrest the principal on the bond itself, and for other reasons not necessary to be enumerated. But if it be a mere recognizance, it need not ordinаrily be signed by the principal. In this state, neither bond ne'ed be signed by the principal. See Code Secs. 5501, 5613. State v. Patterson,
If a bond be statutory and the signature of the principal obligor is required, such bond, if not signed by him, should be held defective or entirely void. But unless the statute be mandatory, the bond need not be signed by the principal obligor, if he is liable without signing the instrument. Minton v. Ozias,
Again, something depends upon the nature of the obligation, and ofttimes more upon the intent of the parties. If the bond be joint only, there is much reason for holding that all the obligors should sign; but if joint and several, or several
Again, it may be that a bond is incomplete when not signed by some party named in it of which the obligee has notice, either from the terms of the instrument or otherwise; in which event, it is held an imperfect instrument because the conditions justifying its delivery have not been complied with. In such cases, bonds are hеld inoperative and unenforceable because delivered without securing the necessary parties as obligors.
There is no suggestion in this record that any of the' parties contemplated or expeсted that the bond would be signed by the appellant Melloon, before its delivery to the justice, or that it was not signed by all the parties who were expected" to sign, so that this question is out of the case.
” At the time the bond wаs given, Melloon was already obligated by the judgment to pay the amount adjudged against him by the justice; and, had the case been affirmed, a judgment would have been rendered against him in the district court. Such judgment was necessаry to fix any liability against the sureties on their bond. In other words, the obligation of the sureties was to pay whatever amount was adjudged against their principal during the further progress of the case'. The principal’s liability did not dеpend upon the bond, and it was not necessary for him to sign it in order to fix his liability. The sureties, by the terms of their bond) agreed to pay the amount so adjudged against him. Had the principal signed the bond, it would have added nothing to his liability and given no protection to the sureties which they did not possess without it. The principal’s obligation is stated, and the sureties undertook the performance thereof, in the
It is said, however, that the statute expressly requires the signature of the principal. It will be observed, that this statute in express terms provides that the bond may be in the form set out or its equivalent. So that the question narrows itself down to the one inquiry, Was the bond given the equivalent of the form set out?
In Moore v. Manser,
As already indicated, the signature of the áppellant, the principal obligor, would have added nothing to his legal liability that was not created by the bond, but was established or to be established in a legal proceeding in which the bond was given; and it would be extremely technical to say in such circumstances that the bond was not the equivalent of one signed by the principal obligor, the appellаnt in the case.
Practically all the cases holding that a bond is invalid • and unenforceable if not signed by the principal were decided upon the theory that the instrument itself created the only obligation of the prinсipal; or that the statute expressly required the signature of the principal; or that the sureties would
This statement will be confirmed by an examination of the following, which are usuаlly cited in support of the contention that a bond not signed by a principal is of no validity. Hall v. Parker,
The current of modern authority is to the effect that, in the absence of statute expressly requiring it, a judicial bond signed by sureties alоne is valid and may be enforced. They proceed upon the theory that, as the signature of the principal adds nothing to his liability, and the want of it takes nothing away from the sureties, and in no manner increases their burdens or robs them of any of their rights, the failure of the principal to sign does not affect the validity of the bond. See Weir v. Mead, supra; Cockrill v. Davie,
This principle has been applied to replevin-bonds: Matter of Cahill,
The bond in this case was not delivered contrary to instructions and, so far as this record discloses, was intended tо be delivered in just the form in which it now appears. It was, therefore, valid and enforceable and of the same legal effect as if it had been signed by the appellant, the principal obligor.
It met the requiremеnts of the statute, and should be • held sufficient. What is said in Novak v. Pitlick,
It could undoubtedly have been enforced against the sureties without joining Melloon, and the amount of the judgment obtained against Melloon would be conclusive against both him and his sureties; and if they paid the judgment, they would be entitled to recover against him, by simply producing their bond showing that they were sureties for the payment of the judgment. We agree with the trial court in its conclusion, and the judgment must be, and it is— Affirmed. ' ¡