56 Neb. 358 | Neb. | 1898
The Omaha Loan & Trust Company recovered a money judgment against Champion S. Chase on November 8, 1895, in the county court of Douglas county. On the 16th day of the same month, and within the time prescribed by law, the defendant gave'an appeal undertaking signed by the surety alone, which was on the same day approved by the county judge. Subsequently plaintiff filed a motion to strike the undertaking from the files, which was sustained, and a new bond ordered to be filed by a specified date, the county judge finding “that there is an irregularity in the execution of said undertaking, and that the same is voidable and should be stricken from the files.” A transcript of the proceedings before the county court, including a copy of said undertaking, was filed by the defendant in the district court on December 5, 1895, and within the period fixed by statute for perfecting an appeal. Plaintiff thereafter filed a motion in the last named court to dismiss the appeal on the following grounds: (1.). No appeal bond was given and approved in the trial court. (2.) The pretended appeal bond was not executed according tp law, and was ordered stricken from the files
The first subdivision of the motion is without merit, since an appeal undertaking was executed and filed in the county court wherein the action was instituted and the surety thereon was duly approved by the judge of said court.
Neither the second nor third ground of the motion furnished sufficient reason for dismissing the appeal. The assignment that “the pretended appeal bond was not executed according to law”' was too general to require consideration. Moreover, the undertaking was regular and valid on its face. True it was not signed by Mr. Chase, the principal therein and appellant. But that was wholly immaterial, and did not render the undertaking invalid. It has been ruled that a bond given to perfect an appeal from a justice’s court is sufficient if signed by the surety alone. (Clark v. Strong, 14 Neb. 229; Stump v. Richardson County Bank, 24 Neb. 522.) Appeals from the county court are prosecuted in the .same mode as causes tried in justice’s court. (See Compiled Statutes, ch. 20, sec. 26.) The fact that the surety on the undertaking was a practicing attorney did not render the instrument a nullity. An attorney, under section 14, chapter 10, Compiled Statutes, is not a proper surety on an appeal undertaking, yet if he executes the same as surety, and the 'bond is approved, he is legally bound, and cannot escape liability oh the ground that he was at the time a practicing attorney. The justice might have declined to approve this bond because the person .signing was not a proper surety, but not having done so, the obligation was valid; and the fact that the surety was an attorney .at law furnished no legal cause for striking the instrument from the files. (Tessier v. Crowley, 17 Neb, 207; Luce v. Foster, 42 Neb. 818.)
Reversed.