State Savings & Loan Ass'n v. Johnson

70 Neb. 753 | Neb. | 1904

Hastings, C.

In this case the plaintiffs in error attempted to appeal from a judgment rendered on May 26, 1903, in favor of Benjamin F. Johnson for $186.40, and costs taxed at $12.15, by P. F. Green, justice of the peace of Lancaster county. They filed an appeal bond signed only by themselves, and, probably, because one of the defendants was a surety company, the justice failed to observe that they had no surety, and indorsed upon it his approval. June 9, 1903, a transcript of the judgment, together with this bond, was filed in the district court for Lancaster county; June 17, Johnson filed amended objections to the jurisdiction of the district court in the following terms: (1) No appeal bond was filed in the court below as required by section 1,007 of the code. (2) That the filing of the purported appeal bond, signed only by the judgment debtors, and the approval of such purported appeal bond by the justice of the before whom said case was not such a compliance with the requirements of section 1,007 of the code as would confer jurisdiction of the subject matter upon this court in attempted appeal proceedings from the judgment of said justice. (3) A purported appeal bond, signed only by joint judgment debtors, does not confer jurisdiction on an appellate court in attempted appeal proceedings. (4) That the purported appeal bond filed in the court below was signed only by defendants, they being joint judgment debtors, against whom judgment was rendered in the court below, no security of any kind being given. On June 29 the court sustained the objections to jurisdiction and dismissed the case at the costs of the defendants, to which they excepted. They now bring the matter here on error, alleging this dismissal, and citing sections 144 and 145 of' the code, permitting amendments and directing the disregarding of all defects not affecting substantial rights, and section 1016, permitting correction of appeal proceedings when they are insufficient in form or amount. It is alleged that the two defendants, plaintiffs in error here, who signed the bond are amply able to respond to any liability on it, and the absence of a surety did not affect any substantial rights of Johnson. They cite Bazzo v. Wallace, 16 Neb. 293, holding that an appeal bond after approval is not void, even if defective, and the similiar holding in Jacobs v. Morrow, 21 Neb. 233. In Deere, Wells & Co. v. Hodges, 59 Neb. 288, an appeal bond was given, signed by one of the defendants, but one against whom the judgment did not run, and for an amount too small; motion to dismiss was overruled in the trial court, and a motion to require a sufficient bond was also overruled. The judgment for defendants was reversed in this court because of error in the overruling of this last motion, but it was held that the trial court had jurisdiction and should have ordered a conditional dismissál, giving time for the filing of a sufficient bond. In Chase v. Omaha Loan & Trust Co., 56 Neb. 358, also cited, a dismissal of the appeal because the bond was signed by an attorney at law was held error: “The district court gave no opportunity to the appellant to give* a new bond, but peremptorily dismissed the appeal. This was a substantial error.” Rube v. Cedar County, 35 Neb. 896. In this last case a peremptory dismissal of a taxpayer’s appeal from allowance of a claim against a county, because of informalities in the wording of the undertaking, was held error. The bond was held sufficient to confer jurisdiction and amendable. McClelland Bros. v. Allison, 34 Kan. 155, is also cited. This case Avas one of a judgment against a partnership; one* of the partners, AA'ho Avas also an attorney at Iuav, signed as sole surety on the bond; it was held to be amendable. Voss v. Feurmann, 23 S. W. (Tex. Civ. App.) 936, expressly holds that a bond signed by one of the defendants as surety, AAdiich had been approved by the justice, conferred jurisdiction on the appellate court.

None of these cases, except the last, seem to be directly in point as to the present bond. It Avould seem, however, that the reasoning of the Texas case, namely, that the approval of the bond by the justice determines its sufficiency until some further action is taken, is sound, and in this instance? the presentation of the bond Avith the justice’s approA’al indorsed, seems sufficient to give jurisdiction to the district court until some further action with regard to that bond Avas taken. Section 1016 of the code seems' ample authority for the district court to deal Avith the situation, and it seems, therefore, that the dismissal for lack of jurisdiction Avas error.

Are the defendants in a position to complain of it? The objection to this bond seems to have been on file 12 days before it Avas acted on, and the objection seems itself to have been amended once. The record does not disclose any application for leave to amend or to file a new bond, but simply the exception on the part of the defendants. It is clear that they Avere not entitled to maintain the appeal without a bond signed by some surety. It is clear that they did not have it. It seems to us that the dismissal of their • appeal, in the absence of any application on their part to correct this bond, must be held to be error Avithout prejudice.

It is therefore recommended that the judgment of the district court be affirmed.

Ames and Oldham, CO., concur. By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.