13 S.D. 162 | S.D. | 1900
This is an appeal from an order made by the county court of Minnehaha county overruling a demurrer to the complaint. The demurrer was interposed upon the' ground that the complaint did not state facts sufficient to constitute a cause of action. In 1896 the plaintiff recovered judgment against Paul S. Knowles and Gale S. Carpenter for ¡?85 and interest, alleged to be due as rent for certain premises in .the city of Sioux Palls. Prom this judgment the defendants took an appeal to the circuit court of Minnehaha county, and executed and filed with the justice the usual printed form of a
It is contended on the part of the appellant (1) that the undertaking sued on was not executed in conformity with the requirements of our statute, and is therefore not a statutory undertaking; (2) that, if the undertaking is construed as a common-law bond, the complaint is insufficient, in that it fails to set out the special facts necessary to show that it is binding as such common law bond.
We are of the opinion that the undertaking cannot be regarded as a statutory undertaking, for the reason that it is executed by only one surety. Section 6133, Comp. Laws, provides that “the appeal from the justice’s court is not effectual for any purpose unless an undertaking be filed, with two or more sureties, in the sum of,” etc. To constitute a valid statutory undertaking, therefore,there must be at least two sureties. Harris v. Regester (Md.) 16 Atl. 386; Reilly v. Atchinson (Ariz.) 32 Pac. 262; Carr v. Sterling, 114 N. Y. 558, 22 N. E. 37; State v. Montgomery, 74 Ala. 226; Mill Co. v. Center, 107 Cal. 195, 40 Pac. 434; Hall v. Cushing, 9 Pick. 404, and note; Cutler v. Roberts, 7 Neb. 4.
The only allegation as to the manner or purpose for which the undertaking was executed appears in Paragraph 4 of the complaint, which reads as follows: “That on the 16th day of June, 1896, said Paul S. Knowles and Gale S. Carpenter, as principals, and A. Gale, as surety, made and executed their bond or undertaking for the appeal of said action aforesaid, as