Reilly v. Crowley

29 P. 14 | Ariz. | 1891

PER CURIAM.

The appellee moves the court to dismiss the appeal because of certain defeats in the appeal-bond. The instrument purporting to.be a bond begins with a recital of the fact that the defendant below was about to appeal from the judgment rendered against him in the action; that the clerk had fixed the probable costs of the appellate court at forty dollars. It then proceeds: “Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, residents and freeholders of the county of Cochise, do hereby jointly and severally undertake and promise on the part of the defendant and appellant that the appellant will pay all damages and costs which may be awarded against him on the said appeal, not exceeding the sum of three hundred dollars, to which amount we acknowledge ourselves severally and jointly bound.” The statute makes the execution and filing of a proper appeal-bond prerequisite to the appellate jurisdiction of this court. Paragraph 859 of the Revised Statutes of 1887 provides that the bond shall be “payable to the appellee or defendant in error in the sum at least double the probable amount of the costs of the suit of both the appellate court and the court below, to be fixed by the clerk, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all the costs which have accrued in the court below, or which may accrue in the appellate court.” The use of the word “or” in the last clause is evidently inadvertent, and should be read “and.” The instrument purporting to be an appeal-bond in this case clearly does not substantially conform to the requirements of the statute. There is no obligee named; the bond is not in a sum at least double the probable amount of costs in both the appellate and the lower courts; it is not conditioned that the appellant shall prosecute his appeal with effect. Moreover the language employed is ambiguous, in that it is difficult to say whether it is intended that only in the event that the damages and costs do not exceed three hundred dollars shall the obligors be bound at all, or that it is intended that the liability of the obligors is to be limited to the sum named. ¥e have passed on these questions recently, and hope not to have occasion to do so again. Adherence to the very simple and plain requirements of the statute is not difficult, and no good reason can be given for so radical a departure therefrom as in this case. The appeal is dismissed, and there will be judgment accordingly.