Schofield v. Felt

10 Colo. 146 | Colo. | 1887

Stallcup, C.

Two questions are presented for consideration. The first is as to the sufficiency of the bond for appeal to the county court. The record shows that the appeal bond was executed as follows: “Lott Schofield, by P. L. Hubbard, his duly-appointed Agent for the Purpose of executing this Bond. A. L. Schofield, Surety.” It is urged by counsel for defendant in error that the bond was insufficient, in that it was not executed by the principal in person. To warrant such execution of the bond, authority therefor of equal rank with the bond was necessary, and should have accompanied the bond; and when the authority of the agent to execute the bond was challenged, as it was by the motion to dismiss the appeal, the authority for so executing the bond should then have been produced if any such authority existed. On the failure to make such showing, the court was warranted in adjudging the appeal bond insufficient; but the court was not warranted in the dismissal of the appeal therefor, notwithstanding the appellant failed to ask leave to file a sufficient bond, as by such absolute dismissal the appellant was denied the right provided for such cases by section 1986 of our General Statutes, which is as follows: “If, upon the trial of any appeal, the bond required to be given shall be adjudged informal or otherwise insufficient, the party who shall have executed such bond shall in nowise be prejudiced by reason of such informality or insufficiency: provided, he will within reasonable time, to be fixed by the court, execute a good and sufficient bond.” This is a copy of the statute of Illinois upon the same subject. The appellant was entitled to reasonable time in which to file a sufficient bond, and it was the imperative duty of the court to enter a rule that, unless the appellant filed a sufficient bond by the day named in the rule, the appeal would be dismissed. Wear v. Killeen, 38 Ill. 259.

The second question presented is as to the cost of the appeal. Must a payment thereof be made to the justice within ten days after rendering the judgment to warrant the appeal, notwithstanding the appeal bond had been filed and approved, and an appeal accordingly prayed, within the ten days ? Sections 1919, 1980 and 1981 of our General Statutes provide for such appeals. The payment of the costs of the appeal to the justice, thereby required, is not a jurisdictional provision. The justice may refuse to act until such costs are paid. It is merely a provision in his behalf to enable him to require the payment of such costs. Carbonate Town Co. v. Ives, ante, p. 81.

The judgment should be reversed and the case remanded, with directions to the county court to proceed in accordance with this opinion.

Macon and Rising, CO., concur.

Per Curiam.

For the reasons given in the foregoing opinion the judgment is reversed, and the cause remanded.

Reversed.