26 Kan. 297 | Kan. | 1881
The opinion of the court was delivered by
The facts in this case are briefly as follows: The Wellington & Western Railroad Co. commenced proceedings before the county commissioners for the condemnation of the right of way; the road ran through plaintiff’s land; damages were awarded to him by the county commissioners, but, dissatisfied with the award made by them, he determined to appeal to vthe district court. In pursuance of this intention, he filed with the county clerk a bond running to the Cowley, Sumner & Fort Smith Railroad Co. The mistake arose, as appears from the affidavit of the attorney for plaintiff', from the fact that the two roads made application to the commissioners for the condemnation of the right of way at about the same time; that he, as attorney, was employed by parties along the line of both roads to appeal from the award of damages, and that from mistake and oversight he prepared the bond as running to the wrong road. Upon the strength of the bond filed by defendant, he applied for leave to file a new bond running to the right road, which motion was overruled by the district court, and upon motion of the defendant the appeal was dismissed. The single question therefore arises, whether upon a judgment in favor of A., and an appeal attempted by giving a bond in favor of B., the district court has the power or ought to permit the perfecting of the appeal by the filing of a new bond running to A. Doubtless where an appeal bond is simply irregular or defective, under §§ 139 and 140 of the code, and 131 of the justices’ act, the appellant should be permitted to supply a new in place of the defective bond; but the bond as filed in this case was an absolute nullity. It was not a bond to the party in interest, but one running to a stranger; not a bond to a trustee or one
We see no error in the ruling of the district court, and it must be affirmed.