Elliott v. Bellevue Gas & Oil Co.

82 Kan. 78 | Kan. | 1910

The opinion of the court was delivered by

Mason, J.:

E. M. and M. U. Elliott obtained a judgment before a justice of the peace against the Bellevue Gas and Oil Company. In order to appeal therefrom the company filed with the justice an instrument in the usual form of an undertaking for that purpose, signed by itself. Two lines under its signature, manifestly intended to indicate the place where the sureties were to sign, were left blank. Indorsed upon the paper, however, was an affidavit signed by C. R. Walterhouse and J. N. Carr, and sworn to by them before the justice, reading, as follows:

“We, the undersigned, sureties on the within undertaking, do solemnly swear that we are residents of said county and state, and that we are each worth $1200 over and above all exemptions, debts and liabilities.”

The justice approved the bond and transmitted the case to the district court. There the plaintiffs moved to dismiss the appeal on the ground that the bond was insufficient to confer jurisdiction, because it was not signed by any surety. Pending the decision of the motion the defendant asked leave to amend by having Walterhouse and Carr sign their names in the blank spaces referred to. Leave to amend was denied and the motion to dismiss was sustained. The defendant appeals.

Under the statute (Jus. Civ. Code, § 121) one wishing to appeal from the judgment of a justice of the peace must within ten days enter into an undertaking for the purpose with at least one surety. Yet an appeal bond signed only by the parties bound by the judgment is held not to be a nullity, but to be capable of amendment by the addition of new signatures after the expiration of the ten days. (McClelland Bros. v. Allison, 34 Kan. 155; Ottawa v. Johnson, 73 Kan. 165.) Here, however, the bond does not in fact lack the signatures of the sureties. At least in the absence of a statute requiring a signature to be “subscribed” to an instrument, it is immaterial to what part of it signers attach their autographs, so long as by such act they signify their consent to be bound by its terms.

“While the proper place for the signature of the obligors is at the foot of the agreement, yet independent of any statutory requirement the manner and form of the signature is immaterial, provided it is made by the surety for the purpose and with the intention of binding himself.” (5 Cyc. 735.)

“The manner or form in which an obligor signs is immaterial, provided that he signs for the purpose of binding himself.” (4 A. & E. Encycl. of L. 621.)

Walterhouse and Carr did not write their names immediately under that of the judgment defendant, but in another place on the same paper they signed a statement describing themselves as sureties on the bond. In attaching their signatures to this writing they must be deemed to have intended the execution of the bond, since they thereby acknowledged themselves to be bound by its terms. No other rational interpretation can be placed upon their act. For the sake of greater formality the sureties might properly have been permitted to affix their signatures in the space left for that purpose, but in its present form the bond is sufficient to perfect the appeal and to confer jurisdiction on the district court.

The judgment is reversed and the cause remanded, with directions to permit the bond to be amended, and upon its amendment to deny the motion to dismiss the appeal.