No. 1839 | Wash. | May 21, 1895
The opinion of the court was delivered by
Respondent, upon a short record, moves for a dismissal of this appeal, for an order affirming
It appears from the record that the appellants, within five days after serving notice of appeal from the judgment entered below, served and filed an appeal bond conditioned so as to effect a stay of proceedings, and thereafter the respondent excepted to the sufficiency of the sureties upon such bond. It further appears that upon an examination of said sureties the court found them insufficient.
Counsel for the appellants concede that the motion to dismiss the appeal must be granted, but insist that judgment should not be directed against the sureties upon the bond.
Sec. 11 of the act approved March 8, 1893, in relation to appeals to the supreme court, Laws 1893, p. 125, provides:
“If the judge upon such examination is satisfied that the surety or sureties are qualified as such, to the extent to which they are required by § 8 of this act to make affidavit, then he shall make a certificate to that effect indorsed upon or attached to the bond, which shall thereupon stand as a sufficient appeal bond to the effect expressed in the condition thereof; but if he is not so satisfied, or if the sureties fail to attend and justify, then the judge shall in like manner certify to that effect, and thereupon the bond shall become void.”
It is doubtless true that the word “ void,” when used in a statute, does not always mean absolutely void for every purpose, and in determining its meaning in a given case regard must be had to the subject matter of the statute, its scope, purpose and effect. We think that by refusing to accept the bond as sufficient, and
The motion to dismiss must be granted, and respondent will recover against the appellants its costs; but the application for judgment against the sureties and for damages will be denied.
Hoyt, C. J., and Anders, J., concur.
Scott and Dunbar, JJ., dissent.